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Anti-Terrorist Legislation Certain to Be Challenged in Court, Rehnquist Says

Chief Justice of the Supreme Court William H. RehnquistLaws written in response to the September 11 terrorist attacks on the U.S. are certain to generate lawsuits, Chief Justice of the Supreme Court William H. Rehnquist, told a jam-packed crowd at the Law School's Caplin Auditorium October 27.

"Criminal defendants naturally want to suppress evidence which incriminates them, and if previously unused methods of gathering the evidence are used, these defendants will doubtless challenge them," Rehnquist said in his keynote address to a two-day conference on the future of American law and legal education that celebrated the 175th anniversary of the law school.

One obvious feature of the future will be on-going growth in the Federal appeals courts' caseload, the chief justice predicted. In 1900 there were 67 district court judges and 28 judgeships in the courts of appeals. Today, to cope with the greater burden of cases, there are 651 and 179 respectively. Continuing to expand the numbers of judges will lead to "problems of collegiality" and in maintaining "a coherent body of law in the circuit," he said, and in any case, the judiciary is merely reactive and cannot create new judgeships. Only Congress can do that.

Of the 322,262 new cases filed in federal district courts in 2000, 48,626, or 15 percent, were based on diversity jurisdiction--when the federal courts exercise authority over a case because it involves parties in different states. Remedies to diversity jurisdiction, which is designed to mitigate against local bias against out-of-state defendants, are improbable. Although people move often between states and there is now less local prejudice, Rehnquist said bar associations and lawyers oppose rolling back diversity jurisdiction because it gives them a choice of two courts in which to file suits.

"The fact that some local judges want the opportunity to try cases based entirely on state law is not a good reason for retaining diversity jurisdiction," which Rehnquist said was a vestige of the time before the Civil war when Americans were not used to thinking of themselves as being one country.

Creating special courts, such as the Tax Court or the Court of Appeals for the Federal Circuit, is more promising, he said, but where such courts have been created in Europe they have lead to a "specialized bar arguing to specialized judges, which can create some pretty arcane doctrine."

The notion of a national court of appeals - a court between the appeals courts and the Supreme Court - was proposed about 15 years ago when the Supreme Court was taking on between 130 and 140 cases a term. But since then the Court has been accepting only about 80 cases a term and with this "unused capacity" the idea of a new national court has dropped from reform agendas.

Rehnquist was also cool to copying the court systems of other democracies, some of which have very large panels of judges, or resorting for relief to international tribunals, which he said can total 45 judges each, one for each country in Europe, and which lack the authority to decline to hear specific cases. Many are therefore choked with thousands of cases pending.

Noting that Rehnquist has chosen more clerks from U.Va. than any other law school, law Dean John C. Jeffries, Jr. informally inducted the Chief Justice in the "Virginia School of Law family." Rehnquist's daughter Janet, now the Inspector General for the Department of Health and Human Services, is a 1985 graduate of the law school.
• Reported by M. Marshall

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