First, there is the fact that "the quality of justice in the nation is largely determined by the quality of justice in State courts," as the first of the findings in the bill asserts. State courts deal with about 95 percent of the litigated disputes in which the people of this country become involved. Overwhelmingly, the public impression of justice is molded by their contacts with State courts whether as litigants, as jurors, as witnesses, or as spectators. Also overwhelmingly the level at which State courts perform determines whether Americans in fact have access to justice through the courts. Unquestionably, the Federal Government has a deep concern in these matters. If the citizens turn cynical about the prospects of obtaining justice from the courts, they will have little confidence in other institutions in the society.

Second, State courts are literally essential to the due execution of Federal laws. As a practical matter, when it comes to enforcing Federal constitutional and statutory limitations on State action under the supremacy principle, State courts are virtually the tribunals of final resort. The reason is well known: the Supreme Court of the United States is utterly unable to accept for review the multitudes of State judgments in which Federal questions of this kind are raised. We know without rehearsing the statistics that the Supreme Court can take only a minuscule percentage of State court appeals and applications seeking its review; and even that tiny fraction has been dwindling as the years pass.

Third, achievement of many important congressional policy objectives is dependent to a significant extent upon the ability of the State courts to aid in implementing the legislation Congress has enacted. A leading example is the 55 mile-per-hour speed limit which Congress has proclaimed, but has left to the State authorities, including the courts, to carry into effect.

Fourth, assistance to State courts is actually an investment in the well-being of the Federal judicial system, or so it should be viewed. If the work of the State courts is of poor quality and results in denial of Federal rights, the Federal courts are obliged to review the States' judicial performance, a task that detracts from time available to the Federal courts to decide cases that are distinctly and uniquely Federal. As the level of State judicial performance goes up, we can expect the burden of Federal review to lighten.

Diversity of citizenship litigation offers another example. When the Federal Government helps improve State courts, it bolsters confidence in them and thereby encourages litigants to select State courts for the adjudication of matters which they might otherwise have brought into the Federal courts even though the State interest predominates.

Further, the Federal judicial system will frequently reap benefits from the lessons learned from experiments and programs conducted by State courts with Federal funds. In serving as laboratories for the development and testing of innovations in the justice system, the State courts are serving in the highest tradition of our Federal structure of Government. The States have provided important lessons in many areas of judicial administration, including programs for merit selection of judges, judicial tenure plans, new technologies for prerecording of trial evidence on video tape, computer-assisted transcription processes, et cetera. In many respects the State systems have forged ahead of the Federal judiciary and are serving as ground breakers. Through the proposed Institute, Federal funds can supply the State courts with the resources necessary to conduct tests, demonstrations and experiments that will result in feeding important information into the Federal judicial system.

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Basically, the proposed State Justice Institute promises to meet the need for a mechanism for distribution of the Federal funds without generating the difficulties that inhere in other structures. These difficulties include concern over Federal domination of State courts, blurring separation-of-power lines and sapping local initiative and responsibility.

It takes nothing away from the important contributions the LEAA program has made to the quality of our State court systems to observe that its activities have ofen sparked controversies. These were unavoidable, given the nature of LEAA as a Federal executive branch agency, attempting to function in an orderly way while exercising flexible discretionary powers and dealing with judicial officers who possess no more than the normal quotient of tolerance for bureaucratic regulations. These problems were compounded by the limitation in LEAA's authorizing legislation which required it to distinguish between problems of civil and criminal justice, ignoring the fact that the two systems are closely

intertwined. The statutory requirement that LEAA funds should go only to the criminal justice system forced the agency to make artificial distinctions in deciding what aspects of the State court's operations it was permissible to support. Instead, the focus should have been on the total concerns of the courts, the LEAA experience has been a constructive first step. The time has now come to take additional steps and the proposed State Justice Institute is one that goes in the right direction.

The planned Institute has the potential to reduce many of the fears that have been expressed regarding Federal funding of State courts. By creating this alternative to LEAA as the administrator of discretionary grants for court improvements, the act wisely allows funding decisions for those purposes to be made by representatives of State judiciaries and the public instead of by Federal executive officials. It takes a useful step to end the anomaly of having a law enforcement agency deeply involved in controlling money for State courts. This should lessen fear of improper control of State judiciary policies and activities. In my view, the act correctly accords greater respect to the principle of separation of powers and to the independent character of the judiciary as a distinct branch of State government. The proposal also recognizes that there should not be a lumping together of the criminal justice functions of the executive and judicial branches; and it ends the attempt to draw arbitrary lines between the civil and criminal responsibilities of the state courts.

Another constructive feature of the act is the fact that the board of directors of the Institute is to be appointed by a process that should assure ample representation from State judiciaries. Some of those appointed will probably come from States that lag behind in regard to modernizing and improving their court systems. When judges from these States find themselves rubbing elbows with judges from States with up-to-date views of judicial administration and judicial training, the educational effect will be significant. The exposure ought to heighten the backward States' awareness of the possibilities of improved performance through better administration and education. It has been my observation that when judges from across the country come together in a common cause, all of them learn in important respects from the exchange of ideas and approaches. The Institute should give great impetus to the sharing, testing and exchange of the most useful ideas state judges have developed in the judicial administration and education fields.

III

While the proposed legislation is basically constructive, a few specific provisions of the act warrant further consideration. For instance, the draft proposal speaks of the need to develop alternative mechanisms for the resolution of disputes. (88 101(b) (9) (1), 101(f) (1) (n)) We strongly support that goal. As you know, the Senate has already passed the Dispute Resolution Act, S. 423, and the House is moving toward final floor action on a companion measure. That act will establish a grant program in the Department of Justice specifically to assist States, local governments and nonprofit organizations in the development of alternative forums for dispute resolution. The Congress will doubtless wish to examine the provisions of the present bill to avoid undesirable duplication.

The question of how much political activity is too much and how much is insufficient arises in two provisions of the act. Although it is right to keep the Institute removed from political activity, the propostl goes too far toward this goal in at least one instance. Section 106 (a) (2) states that "the Institute shall insure [that] all personnel engaged in grant or contract assistance activities supported in whole or part by the Institute refrain, while so engaged, from any partisan political activity." Beyond the fact that this provision seeks to limit rights of poliical expression rather severely, one must be concerned about the impact of this limitation on elected officials who are associated with recipients. On its face, the proscription would seem to apply to a judge or court clerk who has to engage in partisan political activity to run for reelection to office. This it should not do, and plainer language should be chosen to clarify the point.

On the other hand, I question the wisdom of allowing Institute funds to be spent to advocate or oppose "ballot measures, initiatives, or referendums," even with the restriction that they must deal "with the improvement of the state judiciary consisent with the purposes of this ac." (§ 105(d) (4)) Such measures can present highly partisan issues and could involve the Institute in taking sides in partisan political controversies.

It seems imprudent to allow Institute funds to be used for bricks and mortar,

for well-known reasons. The risk is too great even when the use is limited-as the bill provides "to remodel[ing] existing facilities to demonstrate new architectural or technological techniques." (§ 105 (f) (2) (b)) This exception may, so-to-speak, open the door for construction programs in the name of demonstrating architectural innovations. I fear that, at best, the exception would put too high a premium on finding clever ways around the ban on use of the funds for basic operating costs of state courts; at worst, it would generate unseemly, wasteful disputes.

While other technical modifications may be necessary, one major matter for clarification relates to the scope of the Institute's operations. It is unclear from the proposal whether its ultimate aim is to have the Institute assume reponsibility for distributing all Federal funding to State courts or whether the goal is to develop a system in which it will share this responsibility with Federal agencies. Clearly, the range of activities that the Institute will be able to undertake will depend on the level at which it is funded. That level, however, may be determined in part by whether its funds will be substituted for those distributed under other Federal programs or whether its funding will be in addition to the funding of other agencies assisting state courts. The proposal is drafted in such a way that the Institute could manage a budget of either $1 million or $100 million per year.

CONCLUSION

For more than a decade, the Federal Government has been giving State courts substantial financial support to encourage them to pay greater attention to the rising art of judicial administration. The proposal to commit this function to a State Justice Institute is basically sound. It builds on the successes of past efforts to assist State courts and avoids many difficulties. With relatively few refinements, the bi'l will be a major advance in the evolution of enlightened Federal-State cooperation in the field of improved judicial administration. I am hopeful that needed changes will be made and that continuing study and consideration will produce an even better proposal.

If you or other members of the subcommittee have any questions, I shall do my best to respond.

Senator HEFLIN. Senator Simpson, do you have some questions you want to ask?

Senator SIMPSON. Not really, Mr. Chairman, but I do want to say how pleased I am to serve as the ranking minority members of this particular subcommittee with Senator Heflin, whom I have found to be a very bright, knowledgeable, and able person, who likes to get right in the middle of things, and I enjoy that active participation. I regret that I have not been more active on this subcommittee, but Senator, I think you would agree that matters are a little different than when we were practicing law, just some very short time ago, since both of us were elected in November 1978. I have found a great press of business involved in the nuclear arena and the Veterans' Affairs Committee, and will now be turning some attention to this subcommittee because I think it's important, and I especially think this State Justice Institute area is one which we should pursue since, indeed, most of the people are first exposed, and often only exposed, to the State courts, and not to any Federal hierarchy or the Supreme Court. So, I know it will be an area where we will be considering a great many priorities in this subcommittee, and it's good to see that the chairman has designated this as one. I hope to participate as much as I possibly can. I look forward to the pleasure of working with him, and as I say, I have come to recognize his abilities, and I hope we can have a productive relationship as chairman and ranking minority member. I'm very pleased to be associated with him, and think he's a most productive jurist and legislator.

That's all I have at this time, Mr. Chairman, other than to say that

this is an important job, because I, too, practiced law in a small State, but we had a great many important distinctions to clarify in the local court system. I understand the chairman spent a great deal of his time revising that system in his home State of Alabama and I think it's very important. Thank you.

Senator HEFLIN. Thank you, Senator Simpson. Mr. Levin, I believe we will go with you next.

STATEMENT OF A. LEO LEVIN, DIRECTOR, FEDERAL JUDICIAL

CENTER

Mr. LEVIN. Thank you, Mr. Chairman. I am honored to be here. If I might open on a personal note, I count it a matter of great personal pleasure and privilege to appear for the first time before this new subcommittee so fittingly under the chairmanship of one who has already distinguished himself by many achievements in this area.

As I noted in my statement, because of the way the Federal Judicial Center operates, I speak only for myself, but speaking for myself and through my submitted statement, I am so pleased to come and testify wholeheartedly in favor of the basic proposal we have here in this

bill.

Let me say that I take it as axiomatic, certainly at this stage of the hearing, that the national interest in the administration of justice on the State level is clear. I think it may be useful if I were, briefly, to simply indicate the experience that I perceive the Federal Judicial Center has had as an enterprise devoted to similar interests, albeit on the Federal level. Utilizing that experience, I can sketch out some of the potential that I see inherent in the enactment of this bill for a State Justice Institute.

Briefly, I would mention just three areas; I won't try to cover the whole operation of the center. First, what we call our innovations and systems development is responsible for data processing innovations for the Federal courts, the use of computers and modern management techniques for the Federal judicial system. I know there has been some substantial State experience in the area. I would only say that our experience so far, at both the trial and appellate level is just beginning, and makes it perfectly clear that this is, I might stress in large volume courts, an indispensable tool, particularly as the courts have imposed on them, either by rule or by statutes in speedy trial acts, additional time constraints. In complicated appellate courts, the very notion of what motions have been entered, for one example of the status of things that can be better monitored, and we thus view it as exceedingly worthwhile. We are beginning now to achieve the level where and this has just been in the past month-it will no longer be necessary to maintain in the normal way a paper docket but rather take data off the electronic system, reproduce it by microfiche at regular intervals and on demand. We can thus begin to see a program operating effectively, efficiently, more accurate than paper. I consider this really worthwhile research.

The work of the National Center for State Courts is very well known, and we have been the beneficiaries of some of their efforts and we maintain some fairly close contacts, so we hope they perhaps have been in some ways the beneficiary of ours. I think automatic data

processing work has already demonstrated the importance of research for the continuing development of judicial administration.

What of research on court and case management procedures? If I were to go back to the first really classic experimental study it was by Professor Rosenberg, on compulsory pretrial in New Jersey. It revealed the importance of evaluating a new technique, and saying, "Does it really work," and if it does, "What does it accomplish?" "What are the byproducts that we are concerned about?" This type of research, I think, is terribly important and we've demonstrated it on the Federal side, on the appellate level, in the second circuit, and we are now working in the seventh circuit, as well as in trial courts with respect to certain other new innovations. I think such research is an indispensable tool. I speak of the kind of work where you take 3,000 cases, 7,000 docketed entries, 6 different courts, and you begin to say, "What kinds of patterns are developed here and what can we learn so that an individual judge can adjust what he's doing to some new method which seems to be producing better pay dirt for the interests of the litigants?" Always, I stress, we focus on that. I think that's been demonstrated.

Finally, I shall say a word on educational programs. It seems totally clear to us, from the reports of the judges, for example, not only as they conclude a seminar program or orientation session for new judges, but as we talk to them 3 years thereafter, 5 years thereafter, they continue to endorse it as an indispensable, exceedingly valuable tool. And this goes as well for a lot of other personnel in the judicial system. I won't elaborate on similar reactions of the clerks, deputy clerks, circuit executives, but in our judgment, the programs are exceedingly valuable. They ought to be expanded. Many of the State systems have similar experiences. What we are talking about here is making programs available for everyone, and conceivably some interstate kind of experience as well.

Let me conclude briefly by suggesting two kinds of areas where we could hopefully have the Federal Judicial Center working together with the State justice institute. First, there are cooperative ventures in areas of State-Federal relationships. I can see areas, such as with prison petitions, for example, that involve our interest in working together because the problems are common and some of the litigation is in one system, some in another system. Beyond that, there is the business of sharing experiences on common problem. We've done that already, beneficially, but it has been a kind of informal allocation division of responsibility, and that had to do with computer-aided stenographic transcriptions. We've done it in some other research areas. But I see out of this bill the potential for a tremendously increased cooperative approach to the benefit of all.

Briefly, Mr. Chairman, these are what I see as some of the potential benefits. I have elaborated on a number of these things in my statement and it would be my pleasure to attempt to respond to any question which you may have.

Senator HEFLIN. One of the great nationwide needs in the State judicial system is orientation and educational programs to help new judges become acquainted with their new duties. Some States have developed such systems, basically modeled after the Federal Judicial