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The Federal Courts Law Review announces the publication of Evolving Roles in Federal Sentencing: the Post Booker/Fanfan World by Robert J. Anello and Jodi Misher Peikin. We are proud to publish this most timely article that surveys the initial judicial, executive and legislative response to the revolution in sentencing that was caused by the Supreme Court decisions in United States v. Booker and United States v. Fanfan. These two cases abolished the mandatory force of the United States Sentencing Guidelines but indicated that judges must still consider those Guidelines in consonance with the other goals of sentencing that Congress has defined.

The authors insist that this revolution can only be understood in the historical context of the reforms that Congress attempted to accomplish by enacting the Guidelines, such as the abolition of parole, uniformity, and predictability. While they concede the validity of these goals the authors argue that, in practice, the Guidelines constrained unreasonably the exercise of judges’ discretion. They also shifted enormous and unanswerable power from the judges to the prosecutors.

The authors then shift their focus to the Supreme Court’s theoretical analysis that began with cases dealing with the impropriety of sentencing being based on facts not found by the jury and culminated in the abolition of the Guidelines as mandatory. They then analyze recent court interpretations of Booker and Fanfan and the proposals made by the present administration and other interested parties to the Sentencing Commission and Congress in the wake of the Supreme Court’s decisions. The authors criticize the quick fixes that some members of Congress and others have proposed and argue that the new system needs time to take its final form before its efficacy can be judged. While they cannot predict the future, they argue that the system in process of judicial development may, by increasing judicial discretion and lessening prosecutorial control of the sentencing process, result in a thoroughly workable system. There is reason to hope that this new system will serve the interests in uniformity and predictability without abandoning the necessity of requiring each sentence to be a unique exercise of true judgment by a judge permitted to consider all pertinent factors.

We have also recently published The Market for Justice, the “Litigation Explosion” and the “Verdict Bubble”: A Closer Look at Vanishing Trials by United States District Court Judge Frederic N. Smalkin and his son, Frederic N.C. Smalkin.

Beginning with the undeniable premise that the number of trials in the federal courts are decreasing at a remarkable level while the number of cases being arbitrated are increasing, the authors search for an explanation. They insist that litigants and their counsel will “shop” for a forum that presents the cheapest and more efficient manner of resolving their dispute. They find support for this thesis in the English historical experience that clearly indicates that litigants shopped among available court fora for the forum they considered to be the most economical. The Smalkins then argue that the American jury trial system is perceived by the litigants as too expensive because of one particular “cost”, the risk of a verdict out of all proportion to the harm caused. They then reason that federal courts, like the historical courts in England, are simply going to have to make themselves more attractive to litigants by eliminating this cost. They therefore propose significant consideration of replacing the American jury, picked at random from the entire community, with more select juries who are more likely to reach a fairer and, in that sense, more “efficient” verdict because of their professional experience and education. In this way, the federal courts could eliminate the outlier verdict that these authors conclude is driving litigants from the federal courts to arbitration.

We have also published, Preservation of Documents in the Electronic Age–What Should Courts Do? by John L. Carroll.

Dean Carroll analyzes how courts should require litigating parties to preserve the contents of their computer systems, which contain millions of documents and may already be programmed to delete, in the ordinary course of business, documents that may someday be relevant and discoverable. He first argues that the standards for the issuance of preliminary injunctive relief do not and should not apply to the issuance of preservation orders. He then explains how the court and counsel should collaborate on a preservation order that will meet the goals of preserving documents that will truly be needed without burdening the preserving party with unreasonable financial and other obligations. He finds an excellent model for the procedure leading to the adoption of such an order in section 40.25 of the Manual for Complex Litigation (4th ed. 2004), noting that it provides for immediate relief in the issuance of an interim order until the final preservation order can be issued. The hallmark of all such orders must be their reasonableness.

Dean Carroll brings exceptional qualifications to this task of analyzing how the courts must fashion from the existing rules new preservation procedures for a world where nearly all communications are electronic. He is the Dean and the Ethel P. Malugen Professor of Law at the Cumberland School of Law, Samford University where he teaches Federal Courts, Complex Litigation, and E-discovery and Evidence. He is a former United States Magistrate Judge and has served on the Judicial Conference’s Advisory Committee on the Federal Rules of Civil Procedure, where he was former Chair of its discovery committee.

We have also now published U.S. Magistrate Judge John M. Facciola’s review of Discovery Problems and their Solutions by U.S. Magistrate Judge Paul W. Grimm, Charles S. Fax, and Paul Mark Sandler. Our reviewer finds that the book, published by the American Section on Litigation, is an intensely practical analysis of the discovery portions of the Federal Rules of Civil Procedure. According to Judge Facciola, the authors introduce their analysis of each section of the discovery rules with a hypothetical that they then resolve by an exploration of the pertinent rules and their judicial interpretation. This pragmatic approach makes the book a particularly handy and useful guide to the quick resolution of many discovery problems.

We also commend our readers attention to a thoughtful analysis of how the United States should grapple with the prosecution of detainees who are now in the custody of the United States because of our involvement in Afghanistan and Iraq. Author Christopher C. Burris argues it is Time For Congressional Action: The Necessity Of Delineating The Jurisdictional Responsibilities Of Federal District Courts, Courts-Martial, And Military Commissions To Try Violations Of The Laws Of War. The article examines the three legal fora available under U.S. law for violations of the laws of war: federal district courts, courts-martial, and military commissions and the law that can be applied to prosecute such violations. The author argues that there are international and domestic legal restrictions on the President's authority in selecting the proper forum. The article concludes by arguing that: 1) there are significant jurisdictional gaps in the United States’ ability to prosecute violations of international humanitarian law; and, 2) congressional action is warranted to provide a clear and effective legal regime to empower decisive Presidential action.

The percentage of document production that is electronic is growing. The reasons for preferring electronic discovery are becoming more obvious and widely known. In response to this increased use of electronic document production and discovery, the Judicial Conference Advisory Committee on Civil Rules has proposed amendments to the Federal Rules of Civil Procedure which are posted at www.uscourts.gov/rules.

The Federal Courts Law Review is proud to publish two articles, comments, and one book review germane to the proposed rules and to the general topicof electronic discovery. The comments are those of the Federal Magistrate Judges Association. United States Magistrate Judges handle most of the pretrial discovery including electronic document production and discovery. Their comments reflect the perspective of those deeply immersed in the issues on an increasingly regular basis.

The first article is an Electronic Discovery Primer for Judges by Denver attorney David K. Isom. The article is just that, a practical guide for judges to the main electronic discovery issues likely to be presented in the foreseeable future and a discussion of possible solutions. Isom says, “More than 99 % of information now being created and stored is created and stored electronically. . . . The law of electronic discovery is beginning to emerge, but most issues are so unexplored that judges must still develop much important law.”

The second article is The Sedona Production Principles and the Proposed Federal Rules Addressing E-Discovery by attorney Thomas Y. Allman. In recent years, two parallel processes have proceeded which have profound implications for future treatment of electronic documents during civil discovery. The first was the creation of The Sedona Principles, which set forth the best practices in the discovery of electronic documents. The other was the work of the Civil Rules Advisory Committee in drafting and promulgating proposed amendments to the Federal Rules of Civil Procedure. The Sedona Principles complement the proposed amendments and can be used to commend certain proposed amendments and suggest modification to others. In this article, the author analyzes the proposed amendments through the prism of The Sedona Principles and offers suggestions on how they can be modified to better suit the needs of civil litigants.

Mr. Allman has published on corporate governance, compliance, e-discovery, and electronic records management, and regularly speaks on those topics at seminars. He is a member of the Steering Committee of the Sedona Working Group on Electronic Document Retention & Production and has testified before the Advisory Committee on Civil Rules of the Judicial Conference on the subject of electronic discovery at hearings in 1999, 2000, 2003, 2004, and 2005.