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Lexis Abstract: Less than two weeks after the collapse of the World Trade Center, a unifiedCongress passed the Air Transportation Safety and System Stabilization Act (ATSSSA, or"the Act"), a bill intended to help stabilize the economy by protecting the airlines from anavalanche of litigation. . As noted above, the Act provides the airline industry with a range ofbenefits, including federal loan guarantees of up to ten billion dollars; compensation of up tofive billion dollars for "direct losses incurred . as a result of any Federal ground stop order;"compensation for "incremental losses" from September 11 to December 31, 2001;reimbursement for any increase in the cost of insurance through October 1, 2002; and a cashflow benefit from the deferral of the deposit of excise taxes. . The architecture of the Fundwas based in part on the Agent Orange settlement compensation scheme, and the SpecialMaster was based on the Agent Orange court-appointed Special Master. Before Congressenacted the ATSSSA, David Crane, one of Senator Trent Lott's congressional staffers, drafteda model of the Special Master which Congress soon incorporated into the statute. . Acomparison with other victim compensation funds emphasizes the failure of the ATSSSA toprovide for a suitable tort option. . Suddenly, any Fund-eligible parties considering the tortoption would find themselves vying to litigate with a host of new parties.Citing References:Judge John G. Farrell, Administrative Alternatives to Judicial Branch Congestion, 27 J. Nat'lAssn Admin. L. Judiciary 1 (Spring 2007)Lexis Summary: . Workers' Compensation Law (originally called "Workmen'sCompensation Law") involved a new legal concept: liability without fault. . Many moreworkers were assured a recovery for a work accident than were assured under the tortlitigation system. . In addition to providing compensation to the victims, the legislationwas also intended to save the airline industry from bankruptcy and the U.S. economyfrom collapse. . Under the legislation, a monetary fund was created and the attorneygeneral appointed a special master, Kenneth Feinberg, a respected attorney withconsiderable experience with giant class-action lawsuits. . There are some very limitedexceptions which allow certain tort actions in court. . Strictly speaking, I note thatadoption of such programs is not always motivated solely to relieve judicial congestion ordelays. . I believe that both emerging technologies of nanotechnology andbiotechnology are extremely likely to bring with them environmental risks which couldresult in injuries and illnesses with long latency periods and difficult causation issues,involving multiple plaintiffs, all of which are problematic under traditional common lawtort schemes. . It is my belief that carefully crafted administrative alternatives in theseareas could help to provide fair and rapid relief to the victims. [LexisNexis]11. Samuel J. Brakel, Special Masters in Institutional Litigation, 1979 AM. B. FOUND. RES. J.543 (1979).Wiley Abstract: Litigation concerning conditions in institutions such as prisons or mentalhospitals does not stop at the issuance of a remedial decree. Steps must be taken to assureimplementation. Increasingly, the courts are resorting to special masters to assist them inimplementing such institutional reform. While the use of masters by courts is a firmly2753

established tradition, the role assigned to masters in the institutional context is often anextraordinarily broad and intrusive one. As a result, serious questions have arisen about thisnew extra-traditional master role and about the applicability, the sufficiency, of the traditionalrationales and restraints. This article is among the first in a small but developing body ofliterature that begins to examine the new master role and the questions concerning it. [WileyInter Science - http://bit.ly/1LFKfL]12. Wayne D. Brazil, Special Masters in Complex Cases: Extending the Judiciary orReshaping Adjudication? 53 U. CHI. L. REV. 394 (1986).Westlaw Abstract: In recent years, courts have used special masters to help manage complexcivil cases. But this use has raised serious questions of efficacy and ethics. This paper firstidentifies the needs and ambitions that inspire courts to appoint masters, in order todemonstrate why recourse to this tool can be so rich in potential yet so controversial. Then, indescribing some recent roles masters have played, it assays their potential contributions aswell as the risks attending their use. It concludes that as masters are used more ambitiously,the potential benefits and risks increase. Masters can bring significant new skills andflexibility to bear on cases whose complexity threatens to overwhelm our traditional system.However, a correlative danger exists that using masters will fundamentally alter that system inways we find troubling: by making adjudication too informal, by removing it from publicscrutiny and challenge, and by encouraging judges to rely on masters to a degree incompatiblewith appropriate exercise of the judicial function. [Westlaw]Citing References:Jeffrey W. Stempel, New Paradigm, Normal Science, or Crumbling Construct? Trends inAdjudicatory Procedure and Litigation Reform, 59 Brook. L. Rev. 659 (Fall 1993)Introduction: This Article assesses the landscape of litigation reform activity and thecurrent political tension between continuing commitment to open access to the courts anda desire for faster, less expensive dispute resolution. It will also examine the state of thereform process but refrain from evaluating specific proposals. Part I describes majorrecent and current activities affecting American litigation. Part II then analyzes currentdebates about litigation by identifying the leading schools of thought on both litigationpractice and litigation reform. It attempts to situate current litigation issues in a broaderinquiry: whether the perceived post-1938 consensus attending adjudicatory procedure andcivil litigation reform has merely come unglued (in whole or in part) or, rather, whether ithas been supplanted by a new consensus, a “new paradigm,” reflecting an altered visionof the litigation process. Finally, Part III proposes a more integrated and deliberatemethod to govern civil litigation reform as a means of thwarting troublesome recenttendencies. [Westlaw]2854

Irving R. Kaufman, Reform for a System in Crisis: Alternative Dispute Resolution in theFederal Courts, 59 Fordham L. Rev. 1 (October 1990).Introduction: Many observers see the courts on the verge of buckling under the strain;one view from the trenches sees the problem of delay as “‘beyond the crisis stage.”’ Theproblem is not merely one of harried judges. Litigants, people with grievances, are beingdenied meaningful access to the courts. Delay prevents the courts from doing their job—resolving people's disputes at reasonable costs so that they may return to their normallives. Flexibility, experimentation and a willingness to innovate are essential if theadministration of justice is to keep up with the society we serve. What follows is a briefexamination of proposed changes in judicial administration, stressing those that hold thegreatest promise to reduce the major costs of justice—expense and delay. [Westlaw]13. Wayne D. Brazil, Special Masters in the Pre-trial Development of Big Cases: Potentialand Problems, 1982 AM. B. FOUND. RES. J. 289 (1982).Abstract: This article explores the advantages and disadvantages of referring discoverymatters in complex cases to special masters. In the first section Brazil explains how the resultsof his earlier research into the discovery system exposed problems that the appointment ofmasters might help solve. He then describes the kinds of pretrial tasks and roles federal courtshave assigned to special masters and the ways that using a master can expedite and rationalizethe case development process. In the second half of the article, the author assesses the majorobjections to delegating judicial responsibilities to masters and the problems that frequentappointments might cause. Along the way, Brazil offers practical suggestions to judges abouthow to avoid potential difficulties and how to maximize the effectiveness of this increasinglypopular procedure. [Wiley InterScience.14. Wayne D. Brazil, Geoffrey C. Hazard Jr. & Paul R. Rice, Managing Complex Litigation:A Practical Guide to the Use of Special Masters, American Bar Foundation (1983).Abstract from 63 Tex. L. Rev. 721: Professors Geoffrey Hazard and Paul Rice provide anilluminating case study of the management techniques that worked for them as special mastersin the massive United States v. . The purposes of pretrial conferences as stated in the newrule include concerns for efficiency such as "establishing early and continuing control so thatthe case will not be protracted because of lack of management," "discouraging wastefulpretrial activities," "improving the quality of the trial through more thorough preparation," andfacilitating settlement. . They believe that a full-time position is not likely to offer the payand status needed to attract persons whose mastery of the subject and intellectual prowess willenable them to work well with the able and aggressive attorneys usually involved in complexcases. Instead, the authors recommend the use of co-special masters, one with day-to-daymanagement functions and the other with duties related to subject matter expertise. . Judgesshould hold a conference with counsel and the master to discuss the tasks and powers beingdelegated and the procedures to be followed. . Brazil, Hazard, and Rice's Proposals TheBrazil-Hazard-Rice book is concerned primarily with discovery management and addressesthese administrative matters in much more detail than does Schwarzer. . In that case, alldiscovery demands were required to be filed with the masters, thus rejecting the Federal2955

Rules' view that the attorneys should generally conduct discovery without court involvement. According to Hazard and Rice, "The end product was a combined narrative stipulation,pretrial order of issues in dispute, and a tentative order of proof."15. Victoria E. Brieant, Techniques and Potential Conflicts in the Handling of Depositions,ALI-ABA Course of Study: The Art and Science of Serving as a Special Master inFederal and States Courts, Chicago, Ill. 2005.Abstract: Part 1 of this article addressed the use of depositions in the United States and therules that govern them. Topics included deposition techniques, sanctions, the limitations ofdepositions, objections, instructions not to answer, Rule 30(c)(2), special masters andmagistrate judges, discovery of documents reviewed by deponents, videotaped depositions,the form of questions, witness preparation, non-party subpoenas, and authentication ofelectronic evidence. These topics are, however, of utility only when you can actually take thedeposition. Getting to take a deposition is the United States is relatively easy. Despitevariations in rules among the states, the fundamentals tend to be consistent. Taking thedeposition of non-citizens or outside the U.S., on the other hand, can pose some seriousproblems.16. Anne-Marie C. Carstens, Lurking in the Shadows of Judicial Process: Special Masters inthe Supreme Court’s Original Jurisdiction Cases, 86 MINN. L. REV. 625 (2002).Lexis Abstract: However, the arcane procedures and delegations of authority used by theCourt in executing its original jurisdiction—where the Supreme Court functions as a trialcourt—have garnered newfound attention of late. . The precedent that guides the SpecialMaster, particularly in boundary dispute cases, is a fragile body of specialized federalcommon law, pasted together from international law treatises, property concepts, contract law,and sovereignty principles. " New Jersey initiated the first boundary dispute with New Yorkin 1829, a suit in which New Jersey conceded that New York had obtained jurisdiction overEllis Island, Staten Island, and neighboring islands by adverse possession. . Other possiblesolutions include creating a specialized federal court, establishing concurrent originaljurisdiction in the federal district courts, delineating procedures applicable to originaljurisdiction cases, and institutionalizing the prior practice of appointing senior or retiredArticle III judges. Third, a specialized court likely would be better equipped to standardizethe procedures applicable to original jurisdiction cases, given their continued exposure tocases raising similar procedural difficulties. . The United States Court of Federal Claims andthe United States Tax Court are specialized Article I courts; the United States bankruptcycourts are specialized federal courts, but they are considered "units" of the federal districtcourts, and their judges are not subject to the appointment provisions or protections of ArticleIII. [LexisNexis]3056

Citing References:Amalia D. Kessler, Our Inquisitorial Tradition: Equity Procedure, Due Process, and theSearch for an Alternative to the Adversarial, 90 Cornell L. Rev. 1181 (July 2005)Westlaw Abstract: Professor Kessler suggests that some of the worst abuses of modernlitigation--and, in particular, our discovery practice--can be traced to the ill-consideredway in which inquisitorial devices were imported into a common-law-based adversarialframework. By rediscovering our lost inquisitorial history, she argues, we can learn howour botched marriage of inquisitorial and adversarial traditions resulted in much of theinefficiency and unfairness of modern civil litigation, and we can begin self-consciouslyand systematically to develop the inquisitorial framework necessary to remedy ouradversarial excesses.To facilitate procedural reform, Professor Kessler challenges our conception ofinquisitorial procedure as alien to and incompatible with our commitment to due process.this transformation in equity procedures led in the early twentieth century to areconfiguring of the inquisitorial master as a trial master. She suggests that thesubsequent rise of increasingly complex litigation during the second half of the twentiethcentury, and especially the structural injunction suit of the Civil Rights era, led to a reemergence of the master's inquisitorial role, but that scholars have mistakenly viewed thisrole as a new phenomenon. Professor Kessler then posits that much of the inefficiencyand unfairness of modern civil litigation--and, most especially, of the pretrial discoveryprocess--results from integrating equity procedures into an adversarial context thatpermits parties to abuse powerful devices that were once controlled by the courts. Finally,she points to recent French procedural reforms to suggest that we can adopt moreinquisitorial procedures without violating the core values of due process. [Westlaw]17. Frank M. Coffin, The Frontier of Remedies: A Call for Exploration, 67 CAL. L. REV. 983(1979).Abstract from 1983 Duke L.J. 1265: The proposals are those made by Judge Frank M. Coffin,who has suggested major procedural changes to accommodate the exigencies oforganizational change litigation. 135 He is prepared to permit an "outside expert judge" to sit inon the remedial phase, since ex parte "influence would not seem to be of as much concern atthe remedial stage as when liability is at issue." 136 Judge Coffin also recommends thatappellate judges "sit in on critical arguments [in the trial court], absorb the atmosphere, gain abetter appreciation of the problem, and help inform the court of appeals so that it could play amore sensitive role." 137 Likewise, Judge Coffin would sanction conferences between trial andappellate judges before the trial judge decides on a remedy, 138 and he advocates theparticipation of the trial judge as "a resource person" [*1302] at the appellate argument. 139He is ready to adapt existing institutions in dramatic ways to make possible inquisitorialprocedures by trial judges and to make available to them "the help of proven experts." 140Frustration with the inadequacy of the courts to cope with organizational change litigation hasthus generated a willingness to tinker with procedure in quite fundamental ways, with verylittle awareness that such changes might redound to the disadvantage of the system as awhole.3157

18. James S. DeGraw, Rule 53, Inherent Powers, and Institutional Reform: The Lack ofLimits on Special Masters, 66 N.Y.U. L. REV. 800 (1991).Abstract: In addition to performing traditional trial-stage tasks, masters often participateextensively in the pretrial phase by overseeing discovery proceedings and conductingsettlement conferences. . By contrast, if the order of reference appointing a special master toimplement a remedial decree is unclear, she has little guidance. . A court may use its inherentauthority or its authority under Rule 53 to appoint an expert as a special master to advise thecourt. . Despite the appointment of an expert special master, the Lanzaro court retainedsubstantial responsibility for the ultimate resolution of the case. . The appointment of abiased special master thus restricts the court's inquiry even further and escalates exponentiallythe potential for abuse when accompanied by the ability to proceed ex parte, the authority toconduct broad discovery, and a deferential standard of review. . For example, in Toussaint v.McCarthy, the order of reference granted the special master broad discovery and ex partepowers as well as the power "[t]o review the placement and retention of prisoners insegregation, and to require the release of prisoners assigned to segregation without sufficientbasis, in accordance with the provisions of . . . the Permanent Injunction." . When stated inthe order of reference, the master shall have the ability to monitor the defendant's compliancewith the court's decree. . [LexisNexis]Citing References:Thomas L. Creel & Thomas McGahren, Use of Special Masters in Patent Litigation: ASpecial Master’s Perspective, 26 AIPLA Q.J. 109 (Spring 1998).Introduction: Are there unique aspects of patent infringement trials that make the use of aspecial master of particular benefit to the judge and the litigants? Yes, is the answer frommany judges who have used them. The unanimous decision of the Supreme Court inMarkman v. Westview Instruments, Inc. lends credence to the use of special masters. InMarkman, the Supreme Court stated that claim construction is exclusively for the court ina jury trial. Thus, the judge is to construe the claim for the jury much like a statute, andthe jury then decides infringement of the claim so construed. Because claim constructionis a matter of law, the United States Court of Appeals for the Federal Circuit (“FederalCircuit”) reviews the construction under a de novo, not clearly erroneous, standard. As aresult, a judge who is untutored in the science of the patented invention and in thevagaries of patent law is required to make a claim construction that can be reversedwithout regard to fi

Articles, Books, Websites, and Literature About Masters A variety of sources contain information and materials on special masters. The following resources contain references to the use of masters, or explain their roles, or describe their work. Please contact ACAM to include other sources not listed in this Section. See Table of Contents. BOOKS 1.