Judicial Adjuncts Revisited: Masters and Magistrates in the Federal Courts of the United States
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Two very special birthdays took place in 1988, and they relate to the subject of this article. One was the eightieth birthday of my close friend and mentor. Sir I. H. (“Jack”) Jacob, to whom I write in tribute. The other, which received substantial attention on my side of the Atlantic, was the fiftieth birthday of the Federal Rules of Civil Procedure, the rules which govern proceedings in the federal district courts of the United States. Sir Jack introduced me to the importance of the “judicial adjunct” during his tenure as Master (and later, Senior Master) of the High Court of Justice. In 1968-69, under the auspices of a Fullbright Scholarship from the United States and under the direction of Master Jacob, I undertook an in depth study of the English master system. I came away from that year immensely impressed with the value of separating the pre-trial and trial portions of litigation and delegating substantial pre-trial activity to “specialists”—the “English master” in the British system. In the United States at that time, no such specialisation of function existed. District judges in the federal courts, particularly with the adoption of the individual assignment system, took responsibility for an entire case—including pre-trial planning, scheduling, pre-trial decision-making and even settlement. Although the federal court system has traditionally used “special masters,” the American special master had little in common with the English master—other than the name. Special masters in the United States had their historical roots in English Chancery practice, not the later system of Queen's Bench masters, and they were appointed in selected cases to assist judges during trial in matters of account or report on matters of evidence. Thus their function was largely one of trial (and not pre-trial) assistance. The direct American analogue to the English special master is the more modern “federal magistrate” introduced into federal judicial system with passage of the Federal Magistrates Act in 1968 to undertake a substantial pre-trial role, much like the Queen's Bench English master. In recent times, however, both the federal magistrates and “special masters” have developed a substantial pre-trial role, and the role of the judicial adjunct has expanded in the federal courts. Moreover, other related developments are taking place in the United States, such as the creation of court-annexed arbitration for the federal courts. There is no doubt that the use of judicial adjuncts has been extremely valuable in processing the expanding and complicated contemporary litigation caseload. But there has been a corresponding development accompanying the increased use of judicial adjuncts, which bears a closer look. Delegations of judicial power to masters and magistrates have resulted in individual case-by-case customised procedure put in place by judicial adjuncts and a kind of ad hoc procedure. This “new” procedure exposes the myth that there is in fact a single set of Federal Rules of Civil Procedure; it questions whether the “transubstantive philosophy of Rulemaking”—the premise that a single set of general rules should govern all different types of cases—which has guided the Rules Committees since their inception in 1938 continues to be appropriate. The rulemaking debate in the United States today can be seen as one between those who are satisfied with an individual case-by-case customised procedure put in place by judicial adjuncts versus those who advocate more formal rules that do not slavishly adhere to a uniform and transubstantive format. On the occasions of the celebration of the fiftieth anniversary of the Federal Rules of Civil Procedure and of the eightieth birthday of Sir Jack, who, as editor of the Annual Practice, has been so central to thinking about procedural rulemaking, I thought it appropriate to use the vehicle of judicial adjuncts to discuss not only some of the developments that have taken place in the use of magistrates and masters in the United States but also the competing American views of rulemaking philosophy. To that end, I have two main purposes in this article: first, I trace the developments of the roles of masters and magistrates in the federal judicial system and make specific suggestion for revisions in the Federal Rules of Civil Procedure to deal with their use; and second, on a more ambitious note, I submit that transubstantive procedure exists in name only, and I advocate a shift to a rulemaking philosophy that would take account of alternative procedural tracks for processing different types of cases. Because both of these proposals have more to do with the use of special masters than magistrates, my emphasis will be on the use of special masters. But it is worth looking at both models for points of contrast.
Source Publication
International Perspectives on Civil Justice: Essays in Honour of Sir Jack I. H. Jacob Q.C.
Source Editors/Authors
I. R. Scott
Publication Date
1990
Recommended Citation
Silberman, Linda J., "Judicial Adjuncts Revisited: Masters and Magistrates in the Federal Courts of the United States" (1990). Faculty Chapters. 1426.
https://gretchen.law.nyu.edu/fac-chapt/1426
