Since the founding of the Republic, attorneys general have intermittently undertaken to improve the administration of justice in federal courts by a variety of recommendations, proposals, and analyses. Since the mid-1960s, this court reform role by the Department of Justice has been relatively sustained. This article reviews the history of Department of Justice involvement in court reform efforts, with special attention to developments of the last decade. It analyzes the various constitutional and policy reasons that point to an active Justice Department involvement in federal judicial administration and describes the work of the office established for this purpose by Attorney General Bell.
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References
1.
1. Act of 24 Sept. 1789, ch. 20, 1 Stat. 73.
2.
2. 28 U.S.C. § 501 et seq. (1976).
3.
Homer Cummings and Carl McFarland, Federal Justice (New York: Macmillan, 1937), pp. 142, 522 (here-after cited as Federal Justice).
4.
See also Peter Graham Fish, The Politics of Federal Judicial Administration (Princeton, NJ: Princeton University Press, 1973), p. 53 (hereafter cited as Politics).
5.
5. Felix Frankfurter and James M. Landis, The Business of the Supreme Court (New York: Macmillan, 1928) pp. 70-120 (hereafter cited as Supreme Court); [1887] ATT'Y GEN. ANN. REP. xv; [1888] ATT'Y GEN. ANN. REP. xiv.
6.
Act of Mar. 3, 1891, ch. 517, 26 Stat. 826. The story of the efforts to create these courts is retold in Daniel J. Meador, “The Federal Judiciary—Inflation, Malfunction, and a Proposed Course of Action,”Brigham Young University Law Review, 3:617 (1981).
7.
7. 226 U.S. 649 (1912); Cummings and McFarland, Federal Justice, p. 540.
8.
8. Act of 14 Sept. 1922, ch. 306, 42 Stat. 837; Fish, Politics, p. 26, n. 118.
9.
Frankfurter and Landis, Supreme Court, pp. 241-252; Act of 14 Sept. 1922, ch. 306, § 2, 42 Stat. 837, 839. The name was changed to Judicial Conference of the United States in 1948. 62 Stat. 902 (1948); 28 U.S.C. § 331 (1950).
10.
10. Cummings and McFarland, Federal Justice, pp. 226, 525.
11.
William E. Leuchtenberg , “The Origins of Franklin D. Roosevelt's `Court Packing' Plan,”1966Supreme Court Review, p. 347.
12.
12. Act of 24 Aug. 1937, 50 Stat. 751, 752, 28 U.S.C. § 2282, repealed, Pub. L.94-381, § 1, 2, 12 Aug. 1976, 90 Stat. 1119.
13.
13. Now 28 U.S.C. § 1252 (1966).
14.
Congressional Record , 75th Cong., 3d Sess., 1938, vol. 83, part 1, 304.
15.
15. Proceedings of the Attorney General's Conference on Court Congestion and Delay in Litigation, Washington, D.C., 16 and 17 Jun. 1958.
23. The President's Remarks at a Breakfast for Participants Attending the Conference on MackinacIsland, Mich., 11 Weekly Comp. of Pres. Doc. 745-47 (13 Jul. 1975).
24.
24. Department of Justice Committee on Revision of The Federal Judicial System, The Needs of the Federal Courts (1977).
25.
25. [1977] ATT'Y GEN. ANN. REP. 13. The amount of the appropriation has been reduced since then.
26.
26. “Report: Pound Conference Follow-Up Task Force,” in The Pound Conference: Perspectives on Justice in the Future, eds. A. Leo Levin and Russell R. Wheeler (St. Paul, MN: West, 1979), pp. 295-336.
27.
27. 28 C.F.R. § 0.6 (1979); [1977] ATT'Y GEN. ANN. REP. 13. This office replaced the Office of Policy and Planning.
28.
28. Attorney General Bell believed that Edmund Randolph was insufficiently remembered and that he was entitled to greater contemporary recognition for his work concerning the administration of justice. With that in mind, Bell sponsored a special program at the site of Randolph's grave at the Old Chapel near Berryville, Virginia, in June 1979. Analyses of Randolph's work were presented by Professors Merrill D. Peterson and Calvin Woodard of the University of Virginia.
29.
29. S. 450, 96th Cong., 1st Sess. (1979).
30.
30. Bills to create this court and the U.S. Claims Court were first introduced in 1979. They passed both houses of Congress in 1980 but were not then enacted. The measure was enacted in the following Congress. The bill, as signed by the President on 2 April 1982, created the U.S. Court of Appeals for the Federal Circuit (by merging the Court of Claims and the Court of Customs and Patent Appeals) and the U.S. Claims Court. Federal Courts Improvement Act of 1982, P.L. 97-164. The proposal as originally developed in OIAJ is described in Meador and Haworth, “A Proposed New Federal Intermediate Appellate Court,”University of Michigan Journal of Law Reform, 12:201-234 (Winter 1979).
31.
S. 2094, S. 2389 and H.R. 9622, 95th Cong., 2d Sess. (1978).
32.
32. The Federal Magistrate Act of 1979, P.L. 96-82, 93 Stat. 643, amending 28 U.S.C. §§ 631-636, 604(d)(3), 1915 (1976); 18 U.S.C. § 3401 (1976).
33.
33. This proposal is described in Meador, “Proposed Revision of Class Damage Procedures,”American Bar Association Journal, 65:48 (Jan. 1979).
34.
34. These and other proposals were incorporated into a bill entitled the Federal Courts Improvement Act, introduced in 1979. See S. 677, S. 678, S. 1477, 96th Cong., 1st Sess. (1979). They, along with the other proposals cited in the text, were included in a message to Congress sent by President Carter in February 1979 (15 Weekly Comp. of Pres. Doc. 342-46, 27 Feb. 1979).
35.
35. S. 2253, 95th Cong., 2d Sess. (1978).
36.
36. Dispute Resolution Act of 1980, 28 U.S.C. Appendix § 1 et seq.
37.
37. These seminars are described in Mark W. Cannon and Warren I. Cikins, “Inter-branch Cooperation in Improving the Administration of Justice: A Major Innovation,”W.&L.L. Rev., 38:1 (Winter 1981).
38.
38. Commission on Revision of the Federal Court Appellate System, Structure and Internal Procedures: Recommendations for Change (1975).
39.
39. Dept. of Justice Order No. 945-81, 24 May 1981.
40.
statement of Jonathan C. Rose, Assistant Attorney General, Office of Legal Policy, Department of Justice: Hearing on S. 2216 before the Committee on the Judiciary, 97th Congress, 2nd Sess. (1982).
41.
41. For example, the attorney general, in a speech before the American College of Trial Lawyers on 5 Apr. 1982, endorsed the proposals to eliminate the Supreme Court's mandatory jurisdiction and to eliminate the diversity of citizenship jurisdiction.
42.
Edward A. Tamm and Paul C. Reardon, “Warren E. Burger and the Administration of Justice,”Brigham Young University Law Review, 3:447 (1981).
43.
43. U.S. Constitution, art. II § 3.
44.
44. For a recap of extended official and unofficial efforts to deal with a major judicial problem of recent years, see Meador, n. 6 at 625-37.
45.
45. For example, FBI (28 U.S.C. § 531 et seq.); Immigration and Naturalization Service (8 U.S.C. § 1551); United States Trustees (28 U.S.C.A. § 581 (1978)). For a description of departmental organization and its background, see Meador, The President, The Attorney General, and The Department of Justice (White Burkett Miller Center of Public Affairs, 1980).
46.
46. For example, statutes require the attorney general to render legal advice to the president and the heads of executive departments (28 U.S.C. §§ 511, 512), to conduct litigation for the United States in the Supreme Court (28 U.S.C. § 518), to supervise government litigation and direct U.S. Attorneys (28 U.S.C. § 519), and to report annually to Congress on the business of the Department of Justice (28 U.S.C. § 522).
