HISTORY OF THE AMERICAN ACADEMY OF APPELLATE LAWYERS1
The Academy was formed in Florida in July 1990 to bring together the leading attorneys in the nation who devote their practices to appellate representation. The Academy began with 12 individuals, all of whom were Floridians and two of whom were former Chief Justices of the Supreme Court of Florida. The Academy's first president was Arthur J. England, Jr., who had served as Justice and Chief Justice of the Florida Supreme Court from January 1975 through August 1981.
The Inspiration and the Early Years – 1990 to 1993
The Academy was really Arthur's inspiration. He and his fellow founders modeled the general structure and membership criteria after those employed by the American College of Trial Lawyers. The goal of the Academy was, from the very beginning, to advance the highest standards and practices of appellate advocacy and to recognize outstanding appellate lawyers.
The Academy by–laws spell out that mission:
The Academy is a professional association of lawyers skilled and experienced in appellate practice and related post-trial activity, and dedicated to the improvement and enhancement of the standards of appellate practice, and the administration of justice and the ethics of the profession as they relate to appellate practice. It brings together qualified members of the profession who, by reason of their character and ability, will contribute to the accomplishments and good fellowship of the Academy.
By–laws, Article 2.1. Arthur's vision quickly found widespread support.
By February of 1992, the Academy had grown to 53 Fellows. Although a young organization, the Academy already counted among its members prominent appellate practitioners from around the country. E. Barrett Prettyman of the District of Columbia was elected to serve as the Academy's second president. During Barrett's term, the Academy co-sponsored the prestigious Ninth Appellate Practice Institute hosted by the ABA/Appellate Judges Conference. By 1993, the Academy had grown to 77 Fellows.
Development of the Academy as an Institution – 1993 to 1995
Mark I. Harrison of Phoenix, Arizona, served as president of the Academy in 1993-94. During Mark's term, the Academy adopted its logo and published the first edition of its newsletter, The Appellate Advocate. The Academy also revised its membership selection procedures and published the first membership directory. At the mid-year meeting the Fellows heard from two distinguished members and a third experienced Supreme Court advocate who discussed their experiences and suggestions for advocacy before the Supreme Court. That discussion continued at the 1994 Annual Meeting when Tim O'Brien, ABC News’ Supreme Court reporter, shared his views of advocacy at the High Court. At the end of Mark's term, Academy membership stood at 102.
Malcolm Edwards of Seattle, Washington, served as president of the Academy in 1994 – 95. During Mal's administration, membership increased to 148. The by–laws underwent their first substantial revision in 1994. The membership nomination procedure was changed to a confidential nomination system. The original by–laws had provided for nominations and then submission of detailed application information by the nominees. The state membership committees were replaced with Circuit Screening Committees, charged with reviewing the nominations submitted by Fellows and recommending qualified candidates to the Academy for membership. Nominations were made completely confidential, with no communication to the candidate until the nomination was favorably acted upon.
In light of the size of the growing organization, the Academy also decided to explore the retention of a professional executive director. Mal appointed an ad hoc committee to explore the establishment of a permanent Academy office with an Executive Director. Up to this point, the business of the Academy had been conducted solely through the considerable volunteer efforts of its officers, with the principal burden falling on the Academy president. At the same time, the activities of the Academy were expanding. The Academy held its mid–year meeting in Miami, Florida and its annual meeting in Chicago. The program included a session entitled “Teaching Appellate Practice to Lawyers.” Plans were begun for the Academy's first retreat.
Expanding the Contributions of the Academy – 1995 to 1996
Luther T. Munford of Jackson, Mississippi, served as president of the Academy in 1995–96. During his term the Academy held its mid–year meeting in Baltimore, and a two–day retreat in Tucson, Arizona in April 1996, which was attended by approximately one–third of the Academy's members. This gathering of experienced appellate lawyers from around the country, which included unmatchable educational programs developed and presented by Academy Fellows as well as plenty of time for social interaction, was such a success that planning immediately began for a second retreat. The Academy published its first Bibliography for Appellate Lawyers thanks to the efforts of Dennis J. C. Owens of Kansas City, Missouri and Thomas R. Newman of New York, New York. The bibliography was distributed at the 10th Annual Appellate Practice Institute held in Washington in May 1996.
Luther also oversaw the hiring of the Academy's first executive director, Jean Rankin of Management Solutions Plus, Inc. Luther also initiated as an Academy project the preparation of a report on the advisory committees to the circuit courts of the United States. The report which emerged from this project disclosed the wide disparity in the uses, structures and operations of the respective circuit court advisory committees, and copies of the published report were distributed to the chief judges of the several circuit courts and to the federal judicial center. At the end of Luther's term as president, membership stood at 160.
Long Range Planning, Partnering with the Appellate Judges and Addressing Issues Affecting Appellate Courts – 1996 to 1998
Long–range planning for the Academy was the major thrust of Sylvia Walbolt of St. Petersburg, Florida, during her term as president of the Academy in 1996–97. Sylvia was assisted in this effort by Gene Lafitte who served as Chair of the Long Range Planning Committee. Under Sylvia's reign, the Academy continued its strong relationship with the ABA's Conference of Appellate Judges, who joined the Academy Fellows at the Academy annual meeting in Orlando in August of that year. Judge Patricia Wald of the DC Circuit was a featured speaker. At the request of the Chair of the Appellate Judges Conference, the Academy sent a representative, Fellow Charlie Carpenter of Columbia, S.C., to the ABA Task Force on Unreported Opinions. (The Report on Unpublished Opinions prepared by Fellow Charlie Carpenter was published at 50 SC L. Rev. 235 (1998). The Academy also approved for publication the report of the Appellate Courts Liaison Committee on Federal Courts Advisory Committees, which was ultimately published at 175 F.R.D. 110. Membership rose to 193 by the end of Sylvia's term.
The close relationship between the Academy and the Appellate Judges Conference was further enhanced during the 1997–98 presidential term of Sanford (Sandy) Svetcov of San Francisco, California. During Sandy's term, the Academy issued its first published commentary on a national issue affecting the federal appellate courts. The Academy reviewed proposed recommendations regarding the structure of the federal judicial circuits, advising congressional leaders and other interested parties of the Academy's recommendation that any alteration to the existing federal judicial circuits be carefully studied by a national commission – a recommendation which was subsequently followed. A number of Academy Fellows testified before the Structural Commission on structural alternatives for the federal courts of appeal.
As an outgrowth of the spirited discussion in which the Fellows engaged on this important topic, at the annual meeting in San Francisco in August 1997, the Board recommended adoption of a formal policy regarding public positions to be taken by the Academy. A draft policy was published in the Winter 1998 Edition of the Appellate Advocate. The mid–year meeting was held in Nashville, Tennessee, which Fellow Luther Munford declared was squarely in the middle of the country in contrast to other east and west coast venues.
The Academy held its second retreat at Hilton Head, South Carolina in May of 1998. The educational sessions conducted by Academy Fellows included a program devoted to displaying what it is "really" like in an appellate court's conference following a day of oral arguments. The program began with 3 ten–minute per side oral arguments on actual cases taken from the docket of the Supreme Court. Academy Fellows presented arguments to a three–judge panel composed of Arthur England, the former Chief Justice of the Florida Supreme Court, Robert F. Utter, former Chief Justice of the Washington Supreme Court and John Charles Thomas, former Justice of the Virginia Supreme Court. After the arguments, the audience was able to watch the panel's deliberations on the 3 cases as if they were flies on the wall of court's closed, post–argument conference.
Dean Howard Eisenberg and Alan Morrison presented to the Academy at Hilton Head a report of their Recommendation Regarding Interlocutory Appeal. The recommendations were adopted in slightly revised form and the report, including the recommendations, was published as "Discretionary Appellate Review of Non–Final Orders: It's Time To Change the Rules," in 1 Journal of Appellate Practice & Process 285 (1999). At the Academy Annual Meeting in August 1998 in Toronto, the Academy co–sponsored a program with the ABA Appellate Judges Conference and Section of Litigation Appellate Practice Committee entitled "The Future of the Appellate Courts." Fellows Kathleen McCree Lewis of Detroit and Eric Magnuson of Minneapolis served as co–moderators of the program. Program participants included Judges E. Patrick Higginbotham and Robert M. Parker of the Fifth Circuit, Judge Danny J. Boggs of the Sixth Circuit, and Professors Paul Carrington of Duke and Thomas Baker of Texas Tech University.
At the end of Sandy's term, Academy membership had grown to 204. The slow growth of membership, and the cumbersome nature of the nomination process, were specifically addressed by the Long Range Planning Committee, which recommended changes in the membership nomination and screening process.
Changes in the Organization and Its Relationships – 1998 to 1999
Eric Magnuson of Minneapolis served as President during the 1998–1999 term. In September 1998, the Board adopted a by–law amendment that gave the Board the authority to admit new members, rather than requiring a membership vote at an Academy meeting. Membership input was preserved by adoption of a survey procedure, where the Academy Fellows would be polled by fax or e–mail prior to Board action on nominations for membership.
The Academy also made significant changes in its meeting and program planning. From 1990 through 1998, the Academy had met biannually in conjunction with the mid–year and annual meetings of the American Bar Association. While the relationship between the Academy and the ABA (particularly the Appellate Judges Conference) was an important factor in the early development of the Academy, as the Academy grew in size and diversity of its members, logistical and institutional issues made meeting in conjunction with the ABA increasingly difficult. Academy programs were focused on issues unique to appellate justice and appellate practice, such as the role and scope of amicus curiae briefs in appellate courts or the causes and solutions to appellate court delay. Those programs were very valuable to the Academy members, but did not always fit well with ABA functions or schedules.
The original by–laws of the Academy provided that Academy annual and mid–year meetings were to be held "at similar times and places" as those selected by the American Bar Association. In late 1997, the Academy amended its by–laws to give the Board discretion to schedule Academy meetings at other times. Academy programs, presented by Fellows, other prominent appellate practitioners, leading academicians, and by state and federal appellate judges, and the opportunities for social and informal interaction among Fellows led the Academy to move to stand alone meetings.
Beginning in 1999, the Academy decided to formally separate its annual meeting from the ABA. The first program under this new policy was held in New Orleans in May of that year. It was only fitting that this first stand–alone meeting devoted considerable time and energy to a discussion of the future direction and focus of the Academy. Arthur England led a discussion of the Academy's history and purpose, which quickly moved to a wide-ranging discussion of the Academy's future goals and plans. The discussion confirmed the strong mission of the Academy to contribute to the administration of justice in the appellate courts, and to continue the high quality and diversity of programming at the Academy meetings.
By the end of Eric's term, the number of Fellows had grown to 212. Membership issues continued to be a focus for the Academy. Tim Berg of Phoenix, Arizona, became chair of the Membership Evaluation Committee, and helped streamline and publicize the nomination process. The Fellows re–emphasized the significance of the depth and breadth of the appellate experience of each candidate, with due consideration of the nature of the candidate's practice, geographical location and demonstrated skill. The Fellows also engaged in a vigorous discussion of the Report of the Structural Commission, led by Judges Gilbert Merritt and Charles Clark, and Fellows Sandy Svetcov and Jerry Braun.
Broadening Leadership, and a Grand Tenth Anniversary – 1999 to 2000
When Alan Morrison became President in August 1999, he was the first non–law firm President and joined Malcolm Edwards as the only Presidents not from large firms. The highlight of the year was the annual meeting held in Washington D.C. in April 2000 in celebration of the Academy's tenth anniversary, but there were a number of other important events. In a project that began during Eric Magnuson's term, lead by Mark Kravitz of Connecticut, the Academy wrote the Senate Judiciary Committee, in response to statements made at a hearing that the Second Circuit was holding too many oral arguments and a suggestion that it would be more "efficient" to screen the cases and hear only a few of them. The submission, which is posted on our website, provides a nice summary of the reasons why oral argument is desirable, some pithy quotes, and a useful bibliography should the issue arise again.
The Academy's relationship with appellate judges, both within the ABA and generally, continued to be somewhat delicate. The Academy leadership recognized the mutual advantages of working together, but was concerned about the ability of the Academy to grow in its own independent identity. Within the ABA, the Appellate Judges Conference began to raise questions about its relation to the ABA, which the Academy watched with interest. Eventually, the Conference decided to form an appellate lawyer's council to work with it, which any ABA member could join regardless of their appellate experience. The Academy participated in the meetings and discussions and eventually Academy Fellow John Charles Thomas of Richmond was chosen as the first President of the Council of Appellate Lawyers, assuring a continuing relationship, while maintaining the separate identities and missions of the two organizations. In the years to come, the Academy would continue to work closely with the Council. The Academy added a significant number of new members, bringing the total as of July 31, 2000 to 233.
We had our largest turnout ever for our Washington meeting in April 2000, 72 members and 49 guests. The focus of the meeting was attendance at two oral arguments at the Supreme Court. In preparation, presentations on both cases were heard, including one by a colleague of one of the advocates, thanks to Academy member Ed Bruce of Washington. After the arguments, we talked with both counsel in the second case to get their reactions to what had happened, and then we had lunch with three stars of the Supreme Court press corps: Lyle Denniston, the most senior reporter, who is with the Baltimore Sun and formerly did the Courtly Manners column for the American Lawyer; David Savage of the Los Angeles Times, who also covers the Court for the ABA Journal; and Nina Totenberg of NPR, as well as many television programs. They provided a number of insights and took questions from the audience. The grand finale was a reception and dinner in the Great Hall of the Supreme Court, hosted by Associate Justice Stephen Breyer who gave an after dinner talk and answered audience questions. We were also treated to an insightful history of the Academy by its founding President, Arthur England.
More Growth, More Change – 2000 to 2001
Peter Davis of San Francisco, California, served as president of the Academy in 2000–2001. The Academy again co–sponsored with the ABA Appellate Judges Conference the 12th Annual Appellate Practice Institute.
After most organizations have been in existence for a few years, they review their bylaws. Eric began the process during his tenure, but with many suggestions and drafts, a discussion of changes at the annual meeting, and the need for a two–thirds quorum, the new bylaws were not finally approved until Peter Davis' term in 2000. The principal changes involved the addition of a fourth elected director, so that the directors would serve four year staggered terms, and a clarification and codification of the procedures by which we elect new members. Accompanying the latter changes, a new form was created to be used to submit nominations to assure that our records are complete for all nominees and that their progress as they move through the system can be tracked. As part of the review of the nominations process, the membership committee cleared away many names of people who had not been properly nominated so that they could focus on those who were actually eligible for consideration.
The Academy's Fall Meeting was held in San Francisco in November 2000. The program included moot arguments at the Ninth Circuit Court of Appeals, and included participation by Ninth Circuit Judges Mary Schroeder, Ray Fisher, and California Court of Appeal Justices James Marchiano and Carol Corrigan. During that meeting, the Board created a Rules Committee, chaired by Charlie Bird of San Diego and including as members Fellows Luther Munford of Jackson, Mississippi, Kathleen McCree Lewis of Detroit, Michigan, and Kathleen Banke of Fremont, California, to monitor proposed appellate rules changes.
The Annual Meeting was held in San Antonio at the Hill Country Resort in March 2001. At this meeting the Board established a CLE committee, and approved the Case Appellate Representation Project, to help provide references to experienced appellate lawyers to assist primary capital case defense counsel with appeals. During Peter's term, Academy founder and spiritual leader, Arthur England, developed the induction charge that would become a significant part of welcoming new members. Membership rose to 245.
Reaching Across the Pond and Other Successes – 2001 to 2002
Sidney Powell of New Orleans and Asheville, North Carolina served as president of the Academy in 2001–2002. The Fall meeting was held in Chicago in September 2001. Planning for this meeting was led by Ken Bass of Washington, D.C., and the program welcomed jurists and academics from the United Kingdom. Among the sessions was a trans–Atlantic panel discussion on The Role of Policy Consideration in Appellate Jurisprudence. Panelists were David Robertson, author of Judicial Discretion in the House of Lords, Robin Cooke, formerly Chief Judge of the New Zealand Court of Appeals, Sir Stephen Sedley, Judge of the U.K. Court of Appeals, Judge Diane Wood of the United States Court of Appeals for the Seventh Circuit, and Professor Peter Rubin of Georgetown University School of Law. The Academy also co-sponsored the Appellate Practice Institute in Reno, Nevada, again partnering with the Appellate Judges Conference, with the Appellate Judges Conference of the ABA. The Academy updated and moved its website.
The Spring Meeting was held in New Orleans in February 2002, in conjunction with the 17th Annual Fifth Circuit Seminar, which the Academy co–sponsored with the Fifth Circuit Bar Association. The program included two full days of CLE courses on appellate practice. The event was a success with over 250 attorneys from across the country attending. The Academy had 23 Fellows serving as faculty. During Sydney's administration, eleven invitations were issued to new Fellows, but with a number of retirements and deaths, total membership reached 246.
Ken Bass of Washington, D.C., served as president of the Academy in 2002–2003. During Ken's administration the Academy created a proposal on the minimum standards for appellate decisions which includes,"1) a written opinion; 2) a recitation of the facts; 3) a statement of the issues; 4) a statement of the relief granted; and 5) citation to precedent relied upon. They should all be of equal legal status with other decisions of the same court, publicly available, searchable on line, and citable to the court." The Academy Board adopted the proposal in 2002. The Board also created the Howard Eisenberg Award, to be given annually to the best article on appellate practice and procedure published in a journal, and adopted a new Amicus Curiae Policy in early 2003. That policy, published in The Appellate Advocate, 2003, Issue 2, established criteria for the Academy in filing amicus briefs, and an Amicus Brief Committee of five Fellows, comprised of the president–elect, two past presidents, and two Fellows who have not previously served as officers or directors of the Academy.
Addressing Issues Affecting Appellate Courts – 2002 to 2003
The Fall Meeting was held in Denver in September 2002. The program featured a spirited panel discussion on Republican Party of Minnesota vs. White, 122 Sup. Ct. 25–28 (2002). The case was explored by a panel consisting of Fellow Alan Morrison, founder of the Public Citizen Litigation Group, and visiting law professor at Stanford, Fellow James Exum, former Chief Justice of the North Carolina Supreme Court, and Paul Carrington, former Dean and now Professor of Law at Duke. Tenth Circuit appellate lawyers attending the Fall Meeting organized the Association of the Bar of the United States Court of Appeals for the Tenth Circuit to "improve the quality of advocacy, support the work of the Court and the administration of justice, and provide a forum for professional interaction." AAAL also co–sponsored the ABA 13th Institute on Appellate Practice in October 2002 in Reno, Nevada. The Spring Meeting was held in New Orleans in April 2003 in conjunction with the Fifth Circuit Bar. Membership reached 251.
It was during Ken's tenure that the idea of a national program on appellate practice began to take shape. Ken received a letter from Professor and Fellow Daniel Meador, outlining a possible program to be held on the 30th anniversary of the 1975 National Conference on Appellate Justice. Recognizing the magnitude of the undertaking, Ken appointed a steering committee to work with the Federal Judicial Center, the National Center for State Courts and other institutions to explore the program. The plan would come to fruition in November 2005.
Mike Meehan of Tucson, Arizona served as president of the Academy in 2003–2004. Mike's administration was marked by the continued efforts at organizing the 2005 National Conference on Appellate Justice.
Adding Traditions and Reaching Out – 2003 to 2005
The Fall Meeting was held in Williamsburg, Virginia in October 2003. The program included a tour of Courtroom 21, the technology courtroom at the College of William and Mary School of Law, and a case study in U.S. Supreme Court Advocacy. A panel led by Alan Morrison, and featuring Ted Olson, Maureen Mahoney and David Herr examined The University of Michigan affirmative action cases. One of the memorable highlights of the meeting was a ceremony in the original chamber of the House of Burgesses recognizing all of the Fellows of the Academy who had joined before the Academy had a formal induction charge, who had never been formally inducted. Former President Arthur England addressed those Fellows and welcomed them again with the formal induction charge as they stood arrayed around the podium of the House chamber.
During Mike's presidency, the Board adopted several resolutions at this meeting, including directing the President to designate a Fellow to act as liaison to an ABA committee writing Rules of Judicial Conduct; responding favorably to an approach by the Eleventh Circuit appellate lawyers to have the AAAL co–sponsor their Circuit Seminar on Appellate Advocacy; publishing a printed version of the Directory; and setting the quinquennial Academy meeting in Washington D.C. for November 5–7, 2005. The Academy also presented the first Eisenberg prize to the Journal of Appellate Practice and Procedure, which is published by the University of Arkansas at Little Rock. The journal was begun during Howard Eisenberg's tenure as Dean at UALR. The Academy decided to make a one–time award to an institution, rather than an individual, in honor of UALR's unique contribution to appellate law. The Winter Meeting was held in New Orleans in February 2004 where the Academy co–sponsored the 19th Annual Federal Appellate Practice and Advocacy Seminar. Sixteen Fellows participated as faculty. For the first time, total Academy membership declined, to a total of 234.
David Herr of Minneapolis, Minnesota, served as president of the Academy in 2004 2005. During David's tenure, Fellow and past President Alan Morrison was honored upon his retirement as Director of Public Citizen Litigation Group. The membership process continued to evolve, with centralization of the nominating and screening functions under the leadership of Tim Berg of Phoenix. Academy membership grew to 239 Fellows, in part thanks to the significantly streamlined admission process.
Planning the Future of the Academy and of the Appellate Courts – 2005 to 2006
Planning for the National Conference on Appellate Justice continued, consuming a considerable amount of time of the Board and the Steering Committee. The effort was led by Arthur England, Ken Bass, David Herr, Wendy Lascher, Kathleen McCree Lewis, Daniel Meador, and Mike Meehan. (Academy Fellows comprised 7 of the 10 members of the National Steering Committee) David also asked Fellow Charles Bird of San Diego to chair a task group to discuss and draft a statement on appellate advocacy, including the role of the appellate advocate in ensuring the actual and perceived legitimacy of appellate justice, to present at the 21st Century Conference. All took leadership roles in exploring speakers, funding, format and sponsors.
During David's tenure, the Eisenberg prize was awarded to Chad Oldfather of Oklahoma City University School of Law for his article Appellate Courts, Historical Facts, and a Civil–Criminal Distinction 57 Vanderbilt Law Review, 438 2004. The award was presented at the Academy Fall's Meeting in Seattle, Washington, planned by Cate Smith. The program included a discussion of recent developments in appellate recusal and disqualification, and an examination of managing and maintaining an appellate practice, led by Fellow Roger Townsend of Houston. The program also included a presentation to Founding Father Arthur England, a piece of baccarat crystal inscribed to memorialize his ongoing and invaluable leadership of the Academy.
The spring Meeting was held in Santa Fe, New Mexico, planned by Fellows Steve Tucker and Sarah Singletary. The key feature of the Santa Fe program was a renewed strategic planning effort instituted by President Herr. For the first time, the Academy employed an outside consultant, and held several productive sessions, including Academy presidents past and present. The Board also adopted a policy to begin a three–year planning cycle for future meetings.
Charlie Bird, along with a committee comprised of Fellows Thomas Brown of Portland, Oregon, Rick Derevan of Irvine, California, Ellis Horvitz of Encino, California, John Jacobs of Detroit, Ted Kionka of Carbondale, Illinois, Jim Martin of Pittsburgh, Robin Meadow of Los Angeles, Bill Quinlan of Chicago, Mike Reagan of Ottawa, Illinois, Mike Rubin of Baton Rouge, Elliot Scherker of Miami, Ronald Waterman of Helena, Montana and Doug Young of San Francisco, prepared the Statement on the Functions and Future of Appellate Lawyers. A draft statement was circulated to the Fellows in connection with the Santa Fe Meeting held in Spring 2005.
In the summer of 2005, a formal strategic plan was finalized by the Board. Among the goals embodied in the plan were the development of Academy capabilities and external recognition as the leading organization for promoting excellence in appellate advocacy and process, and providing a primary forum to Academy Fellows for education, meetings and collegiality on appellate matters. Becoming more financially independent and secure, and increasing Academy outreach and educational programs with key external stakeholder organizations and audiences to advance the broader understanding of appellate justice. Under David's leadership, the Academy formed a group to review ABA rules and proposals on professional conduct. David also named liaison members to the lawyer consultative groups for two ALI projects impacting appellate practice – the Uniform Penal Code Sentencing Project, and Principles of the Law of Aggregate Litigation Project. The Academy engaged a professional website developer to take over webmaster duties from past president Ken Bass. The Academy noted its debt to Ken for his stalwart service to the Academy in setting up and maintaining the website for several years.
Academy Fellow John G. Roberts became Chief Justice of the Supreme Court in September 2005, having previously served as a judge of the United States Court of Appeals for the District of Columbia Circuit for two years. While a number of Fellows have moved into judicial positions, the entire Academy was thrilled to see Fellow Roberts achieve this well–deserved honor.
The National Conference On Appellate Justice – 2005
Kathleen McCree Lewis of Detroit, Michigan became President for 2005–2006. It was Kathleen's honor and privilege to preside as Academy President during the 2005 National Conference on Appellate Justice. The conference was attended by nearly 200 judges, practicing lawyers and academics, and featured a vibrant combination of small group discussions and general. The program was held November 4–6, 2005, at the Hyatt Regency on Capitol Hill in Washington, D.C. The conference began on Friday evening with a dinner and keynote address from Wisconsin Supreme Court Chief Justice Shirley S. Abrahamson. The Saturday session began with remarks by Justice Stephen Breyer. These were followed over the next two days by plenary panel sessions on "the position of the courts today," "the challenge of volume and the promise of technology", and "optimizing the law – declaring function", each of which was followed by breakout sessions. The conference closed with an address by Indiana Supreme Court Chief Justice Randall Shepard. Professor Arthur Hellman prepared a conference report based on the presentations at the plenary sessions and discussions in the breakout groups. See Arthur J. England, Jr., Planning and Conduct of the National Conference, 8 Journal of Appellate Practice and Process 67 (Spring 2006). Four of the thirteen panelists and panel moderators for the program were Academy Fellows. The Academy played a significant role in raising money for the conference and the conference program, which prominently identified the Academy and many of its Fellows on the Steering Committee and conference panels and recognized the prominence of the Academy in the world of appellate law.
The Annual Meeting of the Academy was held in conjunction with the National Conference. Academy events were attended by Fellow and Chief Justice John Roberts, and by Justice Sandra Day O'Connor. Justice O'Connor addressed the Academy at a private reception and dinner. Fellows in attendance were able to observe oral arguments in the Supreme Court, and had a chance to discuss the cases with the lawyers involved. Linda Greenhouse, the New York Times Supreme Court correspondent and author of Becoming Justice Blackmun: Harry Blackmun's Supreme Court Journey, spoke at the Academy induction dinner. Joan Biskupic, USA Today Supreme Court correspondent and author of Sandra Day O'Connor, How the First Woman on the Supreme Court Became its Most Influential Member, spoke at a luncheon following the supreme court arguments. The 2005 Eisenberg Award was presented to Professor Joan Steinman of the Chicago–Kent College of Law for her article Irregulars: the Appellate Rights of Persons Who Are not Full–Fledged Parties, published at 39 Georgia LR 411 (2005).
Rich and Varied Programs, and Continued Growth – 2006 to 2007
Charlie Carpenter of Columbia, South Carolina served as President during the 2006-2007 term. The Academy Annual Meeting was held in Charleston, South Carolina, where Charlie and his wife Nancy put on an outstanding program. The highlight was a panel discussion titled "A Tribute to Brown v. Board of Education", with panelists including former United States Senator Ernest ("Fritz") Hollings, former South Carolina Chief Justice Ernest A. Finney, Jr., and past President E. Barrett Prettyman, Jr. who served as law clerk to three United States Supreme Court Justices. There was also a panel discussion on "The United States Supreme Court – What We Expect from the Roberts Court", led by Fellow Donald B. Ayer, and including journalist Charles Bierbauer and legal historian Walter F. "Jack" Pratt, Jr. The new Fellow induction ceremony held at the Charlston County Courthouse, was particularly impressive. Professor Nikky Lynn Finney read her poetic tribute to her father, former South Carolina Chief Justice Ernest A. Finney, Jr. Chief Justice Finney was the first post–Reconstruction African–American to serve in many critical South Carolina offices, including Chief Justice. The Academy awarded the 2005–06 Eisenberg Prize to two professors from the University of Cincinnati College of Law, Michael Solimine and Rafael Gely, for their article "The Supreme Court and the DIG: an Empirical and Historical Analysis", 2005 Wisconsin Law Review 1421 (2005). The article explored the practice of the United States Supreme Court of granting certiorari, but then dismissing the case on the ground that the writ was improvidently granted.
In Spring 2006, the Academy met in Tucson at a meeting planned by Fellows Tim Berg, Wendy Lascher and Dan Polsenberg. The program included a presentation on "The Psychology of Mistakes" moderated by Dan Polsenberg, and including a panel comprised of Massimo Piattelli-Palmarini, Ph.D., Professor of Cognitive Science at the University of Arizona, Leonard Ditmanson, M.D., President of the Arizona Medical Association, Adrienne O'Neill, M.S., M.F.T., a family psychologist, and Joel Henriod, from Dan Polsenberg's office. Tim Berg moderated a panel discussion on discretionary interlocutory review in state and federal court. Participants included Tim, Arizona Chief Justice Ruth McGregor, Fellow Jean Debosky of Colorado, and Fellow Dennis Owens. The by-laws were again revised and posted on the Academy's revamped and updated website.
Roger Townsend took over the Membership Committee from Tim Berg and continued Tim's record of excellence. By 2006, membership was 254.
Loss and Growth – 2007 to 2008
Catherine Smith of Seattle, Washington was President in 2007-2008. The Board's first task was thrust upon us by the untimely death of Fellow Kathleen McCree Lewis shortly after the Academy's fall 2007 meeting in Boston. Although the Academy had been in existence for almost two decades, Kathleen's death was the first of a past-President. Coming so soon after her strong year as President in 2005 Ð 2006, her death was quite a shock to Fellows who had grown to know and love Kathleen during her active participation in the Academy.
In her honor, the Academy created the Kathleen McCree Lewis Award for Appellate Justice. The KML Award is given annually, to honor individuals or groups who have "made a contribution that has had an exceptional impact on the delivery of appellate justice." In conjunction with the creation of the Lewis Award, the Academy established its first endowed fund, to which contributions can be specially directed.
In further pursuit of its related goal of improving appellate advocacy, the Academy updated its bibliography of appellate resources. Compilation of the bibliography was undertaken largely by Fellow Nancy Winkelman.
One of the goals identified at the Board's strategic planning session in Santa Fe several years before was the formalization of standing committees, and delegation to those committees of some of the work traditionally undertaken by the Board and past-Presidents. Work toward that goal was the major structural undertaking of the Board, with creation of some new committees and reinvigoration and restaffing of others. In addition, an effort was made to memorialize various Board and other governance functions that in the past had been passed along by oral tradition.
The Academy's spring 2008 meeting was in Miami, Florida. The Academy's membership had grown to 285.
Judicial Recusal – 2008 to 2009
Tim Berg of Phoenix, Arizona served as President during the 2008-2009 term. The Fall Meeting was held in September in Portland, Oregon in conjunction with Lewis and Clark Law School and the Federal Judicial Center. It combined the Fall meeting with a Conference on the 40th Anniversary of the Federal Judicial Center. Justices O' Connor and Kennedy spoke at the joint program. The program included presentations on the impact of technology on appellate courts and standards of review, a presentation by counsel who argued the Exxon Mobile Shipping case at the United States Supreme Court and a discussion by Oregon federal and state judges on issues posed by certification of questions of law from federal to state courts.
Judicial recusal was a major topic during Tim's term. A committee was appointed, chaired by Past-President Cate Smith to look at issues of judicial selection and recusal. This Committee ultimately developed the Academy's Policy on Judicial Recusal which was subject of discussion at several Board meetings and meetings of the Academy.
The Academy also filed an amicus brief in the Caperton case which had been accepted for review by the United States Supreme Court. The brief, which was authored by Wendy Cole Lascher and Gloria Phares, supported the view of the petitioners and argued that in some circumstances permitting a judge to sit on a case where one of the parties to which had made a very significant campaign contribution to him or her violated the Due Process Clause of the United States Constitution. The Court in a 5 to 4 decision adopted the view presented by the Academy and numerous other amici who had supported this position.
The Spring meeting was held in Austin, Texas at the historic Driskill Hotel. The program included presentations on problems posed when federal courts attempt to determine state law, when state courts attempt to determine federal law and when courts base their decision on multiple possible grounds for decision. A lively luncheon discussion also took place with two senior judges of the United States Court of Appeals for the Fifth Circuit providing their insight on changes in appellate practice over the last forty years. The program concluded with a panel discussion about the different ways that appellate judges prepare for oral argument and how those differences in preparation affect the oral argument and the decision process.
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The Academy continues to grow, and its efforts at improving appellate justice are ongoing. The strength of the Academy comes from its talented and active membership. It is the hope of all involved in the Academy that this history will also continue to grow, and reflect the significant achievements of the organization and its members.
- In 1998, Academy President Sandy Svetcov appointed Arthur England, the Academy's first President and founding father, as the Academy's unofficial Academy Historian. This history incorporates all of Arthur's original work, and the contributions of successive presidents submitted at the end of their terms. It is accurate within the limitations of their collective memories. Any additions or corrections are welcome.