Polly J. Price

Dallas, Texas, November 14:  American Society for Legal History

Des Moines, Iowa, December 18:  Iowa State Bar Association’s Federal Practice Seminar

A video link is available to a recent interview by Steve Barnes, aired on the Arkansas Educational Television Network.  This 30-minute conversation, from the series “Steve Barnes and…”, discusses Judge Richard S. Arnold:  A Legacy of Justice on the Federal Bench.  Click here.

The Eighth Circuit Bar Association

Invites you to attend a program featuring Emory Law School Professor Polly J. Price,discussing her new book, Judge Richard S. Arnold:  A Legacy of Justice on the Federal Bench

The Presentation will be followed by a cocktail reception hosted by the Association.

This free program will be held on

September 21, 2009 at 4:00 p.m.

at the Thomas F. Eagleton U.S. Courthouse, 111 South 10th Street, St. Louis, Missouri,in the En Banc Courtroom on the 28^th Floor.

Please R.S.V.P. at: 8thCirBar@spencerfane.com or by calling (816) 292-8376.

I took part in a panel discussion at the 2009  DC Circuit Judicial Conference about preservation of non-official judicial records.  The interchange with the judges was fascinating.  The judges have very real concerns about preserving confidentiality of discussions with their colleagues.  On the other hand, with the passage of time, the need to preserve confidences is lessened.  Justice David Souter has balanced this need for contemporary confidentiality, versus future historical value, by placing a 50-year moratorium on access to his private papers.  (Reported 8/26/09).

Please comment on the folllowing summary of our presentation at the DC Circuit Judicial Conference.  A link to the report by sponsor the DC Circuit Historical society is here. And also reproduced below, with thanks to George W. Jones of Sidley Austin:

Preservation of Non-Official Judicial Papers

On Friday, June 5, 2009, members of the DC Circuit Historical Society Committee on Archival Preservation and Historical Research participated in a lively two-hour panel presentation on the preservation of judges’ non-official papers at the DC Circuit Judicial Conference at the Bedford Springs Resort in Bedford, Pennsylvania.

Committee members Maeva Marcus, Director, Institute for Constitutional Studies, The George Washington University Law School, and Daun van Ee, Historical Specialist, Library of Congress, joined Professor Polly Price, Associate Dean of Faculty and Professor of Law, Emory Law School and author of Richard Arnold: A Legacy of Justice on the Federal Bench, and Bruce Ragsdale, Chief Historian, Federal Judicial Center (”FJC”), on the panel. Committee chair George W. Jones, Jr., Sidley Austin LLP served as moderator.

Not surprisingly, one of the most hotly debated topics was the age-old question of whether judges should make any of their work product or communications about cases other than final opinions available to the public. Whether judges should preserve electronic correspondence with colleagues presented this issue in 21st Century garb. Points of view all along the spectrum of opinion were ably represented at the conference. Suffice to say, the historians on the panel had a very different view than some of the judges.

The key “takeaways” from the presentation are:

• the non-official papers of federal judges may constitute indispensable supplemental material for historians and scholars trying to understand and describe the history of the United States, the operations of the federal judiciary, and the role that individual judges played in the great events of our times; it is impossible to determine today what will be relevant and important to the questions that will be studied 50 years from today;
• as participating witnesses to the history of the United States, all federal judges - not just those who have established national reputations or who have participated in cases of national import — should consider preserving their non-official papers; it is never too early for a judge to begin thinking about preserving his or her non-official papers;
• preserving non-official papers is not nearly as burdensome as some may fear;
• the first step is to identify those repositories that may be most interested in taking a particular judge’s non-official papers; judges who have national reputations or who have handled cases of national significance should consider the Library of Congress; others should consider repository institutions the judge attended or with which the judge has some other relationship, institutions that already have the papers of other judges from the judge’s court, or institutions that have an interest in a particular subject matter that makes up a portion of the judge’s work;
• some institutions want everything; others may be more selective and can provide useful guidance as to what should be preserved; and
• concerns about confidentiality or sensitive materials can be addressed by restricting access to the papers for some specified time or limiting access to particular scholars or appointing one or more trustees with authority to determine access to the papers.

The FJC recently completed work on a second edition of A Guide to the Preservation of Federal Judges’ Papers, its useful primer on what types of papers should be preserved and how to go about preserving them. Copies of the recently released second edition were distributed at the conference.

A segment on the Judge Richard S. Arnold biography will air again on CSPAN II’s Book TV this weekend, on Saturday, August 8, at 8:15 p.m.  For more details and full schedule, click here.

The July issue of Trial, the monthly publication of the American Association of Justice (formerly the Association of Trial Lawyers of America, ATLA), features a book review of Judge Richard S. Arnold by Kevin Shehan.  The full citation is vol. 45, pp. 62-63 (July 2009).  I am grateful to the publisher for permission to post the review here:

JUDGE RICHARD S. ARNOLD

POLLY J. PRICE

PROMETHEUS BOOKS WWW.PROMETHEUSBOOKS.COM 480 PP., $25.98 CLOTH

Kevin Shehan [FNa1]

Copyright © 2009 by the American Association for Justice; Kevin Shehan

Emory University School of Law Professor and Associate Dean Polly Price presents the life of a preeminent modern jurist in her biography Judge Richard S. Arnold: A Legacy of Justice on the Federal Bench. In this, her second book, Price shows the late Judge Arnold to be worthy of the superlative praise he has received from an impressive chorus: presidents, members of Congress, justices and jurists, and former legal and political opponents.

Richard Sheppard Arnold, who at his death in 2004 was a senior judge on the U.S. Court of Appeals for the Eighth Circuit and Price’s former employer (she was his law clerk from 1989 to 1991), is probably most noted for his First Amendment jurisprudence. Perhaps he will be most remembered as the modern-day Learned Hand, as editorialist Paul Greenberg wrote, calling Arnold “the greatest American jurist of his time not to serve on the Supreme Court of the United States.”

But Price reminds us what may be most prized about Arnold. He was a brilliant jurist and paragon of judicial temperament who thoughtfully addressed the concerns of the parties who came before him through carefully dispensed, legally sound justice.

A Legacy of Justice begins with an elegantly succinct foreword by Supreme Court Justice Ruth Bader Ginsburg. She writes that her “generation knew no finer federal judge.”

Price then masterfully marshals the knowledge she gained from Arnold’s private papers, internal court documents, interviews (including interviews with Arnold himself), and other sources both public and private. Through a historical and forensic review of his work, Price shows us Arnold’s contributions to environmental law as a lawyer; to individual rights jurisprudence as a jurist; and to the federal judiciary itself, as the chairman of the Judicial Conference’s budget committee and the judiciary’s emissary to Congress.

Price also presents a candid look at the inner workings of the federal judiciary itself, through the lens of Arnold’s work. And she reveals the politics that drive judicial appointments, through a review of the realities of Arnold’s own appointments–and later his omission from the Supreme Court of the United States for health reasons. When President Clinton chose Justice Stephen Breyer as his final appointee to the Court, he cited Arnold’s lymphoma as the reason Arnold was not selected.

What is most striking about A Legacy of Justice is Price’s use of the details of Arnold’s personal and political life to explain his work. For example, Arnold was a devout Christian. Price hypothesizes that this may have inspired his much-lauded temperament as a jurist.

Price also hypothesizes that, perhaps, Arnold’s personal politics softened as a result of his Supreme Court clerkship for and continuing friendship with Justice William Brennan, whom Price acknowledges as a notable liberal justice. While Arnold was an undergraduate at Yale, before being exposed to Brennan’s influence, he opposed as a matter of states’ rights the desegregation holding of Brown v. Board of Education. But after years of mentoring by Brennan, Arnold championed civil rights and individual liberties.

For instance, in Dodson v. Arkansas Activities Association, Arnold, sitting on the federal district court in Little Rock, held that the half-court high school basketball that Diana Lee Dodson and other girls in Arkansas were required to play violated the Equal Protection Clause of the Fourteenth Amendment. Women’s college basketball was played full-court nationwide, so these half-court-playing women were at a disadvantage in competing for basketball scholarships against their full-court-playing counterparts. And the only reason for the disadvantage was sex; no boys played half-court basketball.

Members of the trial bar who seek greater understanding of how appellate court decisions are made would do well to read Price’s revelations in A Legacy of Justice. Through compelling descriptions of Arnold’s notable appellate decisions, Price makes good on her promise to provide special insight into the “other court,” the federal circuit courts of appeal. Moreover, her description of the Supreme Court’s decision-making process in Mapp v. Ohio is particularly mesmerizing. That landmark decision, which applied the Fourth Amendment exclusionary rule to state prosecutions, was decided while Arnold was Brennan’s law clerk. Price illuminates the tumult and politics involved in majority-making on the Court by presenting it through the eyes of a young but brilliant Arnold.

Price acknowledges that reasonable minds would differ on her presentation based on what she calls the “record” of Arnold’s life. But Price’s work winningly surpasses her modest goal of fairly presenting that record. All told, A Legacy of Justice is a meticulous recitation of Arnold’s life and achievements. It stands firmly as an appropriate tribute to him.

[FNa1]. KEVIN SHEHAN is an attorney-adviser in the Office of the Assistant General Counsel for General Law at the U.S. Department of Energy. He is also an adjunct professor in the Legal Research, Writing, and Analysis Department of George Mason University School of Law.

An alert CSPAN viewer in North Carolina let me know that I appeared on C-SPAN’s Book TV this past weekend.  The 45-minute program was taped at the Clinton School in May.  I am told that the program is likely to be repeated, so I plan to keep an eye on the Book TV schedule.  A link to the description of the program on Book TV is here.

The Judge Richard Arnold biography was noted recently on the Constitutional Law Professor blog, with a link here.

The Clinton School of Public Service has posted a video of my talk there in the Distinguished Speakers series.  The video is 42 minutes; available here.

C-SPAN sent a film crew to record the event for Book TV.   Watch this space for schedule details.

At his farewell address at Georgetown, Justice Souter quoted Judge Richard S. Arnold on  the qualities of judging, as reported by Tony Mauro on The BLT: Blog of Legal Times. Scroll down to the final paragraph below: