Shepard, Randall T.

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Notre Dame Law ReviewVolume 72 | Issue 4 Article 36-1-1999State High Courts as Central Figures in the Futureof the American Legal SystemRandall T. ShepardFollow this and additional works at: http://scholarship.law.nd.edu/ndlrPart of the Law CommonsThis Article is brought to you for free and open access by NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by anauthorized administrator of NDLScholarship. For more information, please contact lawdr@nd.edu.Recommended CitationRandall T. Shepard, State High Courts as Central Figures in the Future of the American Legal System, 72 Notre Dame L. Rev. 1009 (1997).Available at: http://scholarship.law.nd.edu/ndlr/vol72/iss4/3SYMPOSIUMTHE FUTURE OF STATE SUPREME COURTSAS INSTITUTIONS IN THE LAWSTATE HIGH COURTS AS CENTRAL FIGURES INTHE FUTURE OF THE AMERICAN LEGAL SYSTEMThe Honorable Randall T. Shepard*There is a curious dichotomy in the way we lawyers look at statesupreme courts and their work. On the one hand, most Americanlawyers commit a substantial part of our attention in the day-to-daypractice of law to the decisions announced by state supreme courtsand, indeed, to decisions announced by the intermediate courts aswell. The decisions of these courts have occupied a prominent placein the legal profession for more than a century. Ever since Christo-pher Columbus Langdell introduced the caselaw method of instruc-tion at Harvard Law School in the 1880s, most American lawyers havecommenced their introduction into the law by reading, criticizing,and debating appellate court opinions. In the basic first-year coursesin which most law students enroll, courses like contracts, torts, andproperty, a substantial percentage of the reading material is the workof state appellate courts. Who can walk out of an American law schoolwithout having contemplated the intricacies of Palsgraf v. Long IslandRailroad Co.' or Hawkins v. McGee?2Teaching methods change, of course, and the practice of incul-cating legal thinking in students through Socratic dissection of appel-late decisions does not hold sway as it once did. Still, the sources of* ChiefJustice of Indiana. A.B. Princeton University 1969; J.D. Yale Law School1972; LL.M. University of Virginia 1995.1 162 N.E. 99 (1928).2 146 A. 641 (1929) (the hairy hand case). Equally firm in the memory of mostlawyers are the prominent English common law cases we read in the same courses,such as the light "squib" case concerning foreseeability of risk, Shepherd v. Scot 95Eng. Rep 1124 (1773), or Keeble v. Hickeringill, 103 Eng. Rep. 1127 (Q.B. 1707) (thecase of the duck pond decoy).1009NOTRE DAME LAW REVIEWreading material have not changed a great deal. In the current era,even a topic recently so dominated by federal jurisprudence as consti-tutional law now finds itself joined in the law school course bulletinsby a burgeoning number of courses on state constitutional law.3 Inthe daily practice of law, it is apparent that the opinions written bystate appellate courts are still a strong force. Lawyers vote on this withtheir checkbooks. In 1996, they bought subscriptions sustaining thepublication of 41,550 state court opinions.4For all the time we lawyers and judges spend focused on the writ-ten decisions of state supreme courts, however, we spend relativelylittle time assessing the role of these courts as institutions in our pro-fession.5 The legal literature on topics such as how appellate courtsreach these decisions is sparse indeed.6 Similarly sparse is the list ofarticles about the other ways in which state supreme courts affect thepractice of law, legal education, and the like.3 Robert F. Williams, Foreword: Looking Back at the New Judicial Federalism's FirstGeneration, 30 VAL. U. L. REV. xiii (1996).4 West Publishing Company published 41,550 opinions of the state courts and17,209 of the federal courts in 1996. Telephone Interview with Kate MacEachem,Representative, West Publishing Company (Apr. 11, 1997). State court opinions out-number federal opinions by nearly two and a half times, but the disparity in appellatework is even greater because the federal total includes opinions of the district courts.West does not release subscription information, but it is safe to bet that West sellsmany, many more subscriptions to its state law reporters than it does to the federalreporters, although electronic research may be narrowing the gap.In another light, many of the federal cases reported are in the federal forum onlyon the basis of diversity jurisdiction, 28 U.S.C. § 1332 (1996). The substantive law indiversity cases is state law, Erie R.R- v. Tompkins, 304 U.S. 64 (1938). Accordingly,federal courts routinely look to the state supreme courts for controlling precedentwhen deciding cases, a principle of judicial federalism recently reiterated by theUnited States Supreme Court. See Arizonans for Official English v. Arizona, 117 S. Ct.1055, 1073-74 (1997) (certification of questions to state supreme courts for authorita-tive interpretation of novel or unsettled questions of state law is preferred to"[s]peculation by a federal court about the meaning of a state statute").5 Among the best works examining the institutions are KARL LLEWELLYN, THECOMMON LAW TRaDrrION: DECIDING APPEALS (1960); G. ALAN TARR & MARY CORNELIAALDis PORTER, STATE SUPREME COURTS IN STATE AND NATION (1988); Robert A. Kaganet. al., The Business of State Supreme Courts, 1870-1970, 30 STAN. L. REV. 121 (1977);Thomas B. Marvell & Mae Kuykendall, Appellate Courts Facts and Figures, ST. CT. J.,Spring 1980, at 9.6 When I was appointed an appellate judge in 1985 after a stint as a trial courtjudge, I realized that I knew relatively little about what supreme court justices do allday and how they do it. I asked a teacher of law, a long-time friend, whether he couldpoint me to any writing about the internal dynamics of appellate courts. He couldnot. Even today, I would be hard-pressed to do so.[VOL. 72:41010STATE SUPREME COURTSNotwithstanding this paucity of legal literature, it is apparent thatstate supreme courts shape our work as lawyers from law school tofiling complaints and arguing before juries. Moreover, they are en-gines of change.7The ways in which state supreme courts shape the profession af-fect us as lawyers from the earliest point in our legal education. Thesystem by which the American Bar Association (ABA) accredits lawschools, a process which influences American legal education in sub-stantial ways,8 rests in the main on the regulatory authority of statesupreme courts. It depends principally on the willingness of thosecourts to designate graduation from a school accredited by the ABA asthe leading credential necessary to sit for bar examinations.97 In civil procedure, for example, it has been the Arizona Supreme Court thathas struck out on new paths to reform the system of discovery invented by the 1939Federal Rules of Civil Procedure. Thomas A. Zlaket, Encouraging Litigators to Be Law-yers: Arizona's New Civil Rules, 25 Amz. ST. LJ. 1 (1993);Jeffrey D. Collins, Note, AlaskaRule 26: A Quixotic Venture into the World of Mandatory Disclosure, 11 ALASKA L. REV. 337(1994). Modem jury reform is a state court movement. SeeJuRy TRIAL INNOVATIONS(G. Thomas Munsterman et al. eds., 1997).8 See, Paul D. Carrington, Diversity!, 1992 UTAH L. REV. 1105 (1992). ProfessorCarrington discusses political correctness, Bakke intellectual "ideological fashion,"and the accreditation process. He concludes among other things that accreditationhas had a significant impact on raising the status of legal education in comparison toother learned professions (e.g., medicine) within academic circles. He credits accred-itation with effectively promoting and guarding intellectual freedom and administra-tive autonomy on law school faculties and in law school libraries. He maintains,however, that accreditation has had little, if any impact on the demographic make-upof law schools and that diversity requirements in accreditation may endanger the via-bility of the process.9 There are two other relevant sources of authority. First, the United States De-partment of Education recognizes ABA's Council of the Section of Legal Educationand Admissions to the Bar as the accrediting agency for the Department's purposes.Recognition of Accrediting Agencies, State Agencies for Approval of Public Post-secondary Vocational Education, 61 Fed. Reg. 66,026-03 (1996) (proposed Dec. 16,1996) (petition for renewal of application). While this recognition connects the ABAprocess to the federal government, its actual impact is relatively modest. Most Ameri-can law schools are accredited as part of their parent universities by regional accredit-ing agencies; for them, the Department of Education designation of the ABA is of nomoment. For about a dozen law schools that stand independent of any university,however, ABA accreditation makes possible various federal loan and grant programsfor which they would otherwise not be eligible.Second, the Association of American Law Schools (AALS) performs an accredita-tion function with substantial standing inside the academic community. The accredi-tation function actually focuses on the membership requirements of the AALS.Robert W. Bennett, Reflections on the Law School Accreditation Process, 30 WAKE.: Fom--r L.Ri.v. 379, 382-83 (1995). AALS affords membership only to ABA accredited schools,of which there are 179. SECTION OF Li.EGAL EmUc. & A)MISSIONS TO THE BAR, ABA, A19971 10111012 NOTRE DAME LAW REVIEW [VOL. 72:4Similarly, the bar examinations themselves are administered al-most wholly under the supervision of boards of bar examiners ap-pointed or supervised by state supreme courts. Admissions to the barof federal district courts, for example, is a relatively perfunctory mat-ter for persons admitted to practice in a state's courts. 10The influence of state supreme courts and their bar examinerson bar admissions and thus on legal education has been most appar-ent in the recent movement spawned by state bars, law schools, andcourts to collaborate on reforming the way lawyers are edu-cated."This collaboration has taken the form of state legal conclaves,of which there have been twenty-seven.The entire field of legal ethics is focused on the rules adopted bystate supreme courts.I2 While the ABA model codes of conduct forlawyers and judges' 3 are national in scope, their legal legitimacy restson the decisions of state supreme courts to adopt them in whole or inpart.'4Similarly, bar discipline in the American legal profession islargely state bar discipline. While federal courts act separately on dis-ciplinary cases involving individual lawyers, in actuality they rarely runtheir own disciplinary operations.' 5REVIEW OF LEGAL EDUCATION IN THE UNITED STATES FALL 1995, at 1 (Rick L. Morganed., 1995). There are just 160 AALS member schools. See, The Association of AmericanLaw Schools Has 160 Member Schools (visited Mar. 29, 1997) <http://www.aals.org/members.html>.10 See e.g., S.D. IND. L. R. 83.5(b).11 These reforms have been set in motion in the wake of the ABA's "MacCrateReport." sSECTION OF LEGAL EDUC. AND ADMISSION TO THE BAR, ABA, LEGAL EDUCUCA-TION AND PROFESSIONAL DEVELOPMENT-AN EDUCATIONAL CONTINUUM (1992).12 See, e.g., S.D. IND., L. R. 83.5(f).13 These are products of the Association's work from early in the twentieth cen-tury. See Randall T. Shepard, Campaign Speech: Restraints and Liberty inJudicial Ethics, 9GEO. J. LEG. ETHICS 1059, 1063-64 (1996).14 Virtually every state, for example, has adopted the ABA's principal code forjudges. JEFFREY M. SHAMAN ET AL., JUDICIAL CONDUCT AND ETHICS 4 (1990) (notingthat all states but Montana, Rhode Island, and Wisconsin adopted the 1972 code).15 Generally, federal courts rely on state disciplinary commissions to prosecuteallegations of professional misconduct. See, e.g., S.D. IND. RULES OF DISCIPLINARY EN-FORCEMENT R. V (disciplinary proceedings), R. X (appointment of counsel); see also Inre Maternowski, 674 N.E.2d 1287 (Ind. 1996). In fact, federal jurisprudence in disci-plinary matters is so deferential that Younger abstention has been held to apply in civilcases where the plaintiff seeks to enjoin state disciplinary proceedings, Hodari v. At-torney Grievance Comm'n, 1996 WL 426485, *3 (E.D. Mich. 1996) (memorandumdecision) (citing Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 475 U.S.457 (1982)), and state disciplinary rules have been held to be the proper substantivelaw for deciding disciplinary cases in federal district court, Cardona v. General MotorsCorp., 939 F. Supp. 351, 355 (D.NJ. 1996) (same facts and legal issue may engenderSTATE SUPREME COURTSIn areas of substantive law, quite aside from the courses still usedfor first-year legal education that flow from Blackstone's influence,state supreme courts dominate fields such as products liability, fami-lies and children, and insurance, to name a few. Civil liberties advo-cates find themselves increasingly in state court, looking to make newlaw under state constitutions. The highest visibility cases of all, thoseinvolving the death penalty, are largely in the hands of state supremecourts, especially after the 1996 amendments to the federal habeasstatutes.16Which brings me to the other side of the dichotomy I spoke of atthe outset. For all of the important tasks in which the states' highestcourts are so central, analysis of their work does not regularly find itsway into legal literature. The writings that are published often fail tofocus adequately on the future these courts are building.With this in mind, we present a symposium on the present andfuture role of state supreme courts. Professors Williams, Friesen, andTarr address the important and developing field of state constitu-tional law. William Rakes then examines ways in which the threebranches of the bar-courts, practitioners, and the academy-canwork together; and Professor Uelmen addresses political threats to theindependence of state judiciaries. Professor White, Erica Moeser, andProfessor Hazard take up, respectively, the supreme courts' role inregulating the profession: legal education, bar admission, and ethics.Steven Brill turns our attention to televisions in the'courtroom. AndKen Bode moderates the final roundtable, composed of ChiefJusticesShirley S. Abrahamson of Wisconsin, Robert Benham of Georgia,Idiffering results within same circuit because "Our Federalism" permits states to adoptdiffering rules of professional conduct).In cases where judicial misconduct is alleged, the ordinary proceeding is for thecircuit court to appoint an investigatory committee to conduct hearings on the matterafter initial review by the chiefjudge. The procedures are governed by circuit rulesunder the authority of federal statute. 28 U.S.CA. 372(c) (West 1993 & Supp. 1996).Assembly of an investigatory committee is episodic; the circuits do not maintain per-manent judicial disciplinary committees. See, e.g., 7TH CIR. JUDICIAL MISCONDUCr L4(e), 9 (committee composed of chief judge and an equal number of circuit anddistrict judges not of the respondent judge's district convened upon order of chiefjudge).The difference in investigatory processes between allegation of attorney miscon-duct and judicial misconduct is a simple matter of subject matter jurisdiction. Thefederal judicial power was established by Article III of the Constitution, but attorneys'licenses to practice law are granted by the states. Accordinglyjudicial misconduct is acircuit matter.16 Felkerv. Turpin, 116 S.Ct. 2333 (1996); Antiterrorism and Effective Death Pen-alty Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (1996).IL997] 10131014 NOTRE DAME LAW REVIEW [VOL. 72:4Perry 0. Hooper, Sr. of Alabama, and E. Norman Veasey of Delaware.The panel considers the work of state high courts in several fields ofsubstantive law.The symposium was presented at a recent meeting of the Confer-ence of Chief Justices of the supreme courts of each state. It is aunique joint venture undertaken by the Conference of ChiefJustices,the Notre Dame Law Review, and the Supreme Court of Indiana. Weextend our earnest thanks to the chief justices, leading scholars, andpractitioners who have contributed their thoughts to this endeavor.

State High Courts as Central Figures in the Future of the American Legal System

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State High Courts as Central Figures in the Future of the American Legal System

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