1 For a variety of reasons, the institutional controversies in Alabama have drawn much of the public media coverage. E.g., The New Right to Treatment: Tuscaloosa's Bryce Hospital, 97 Time, Apr. 5, 1971, at 52; The Real Governor: The Rulings of Judge F. M. Johnson, Jr., Time, Jan. 26, 1976, at 65; and Snake Pits: The Decisions of Judge F. M. Johnson, Newsweek, Jan. 26, 1976, at 43.Google Scholar

2 See the Index to Legal Periodicals under “Prisons and Prisoners” and under “Mental Health.”Google Scholar

3 See, for example, the former Prison Law Reporter, published by the Young Lawyers Division and the Committee and the Resource Center on Correctional Law and Legal Services of the American Bar Association, and its successor, the Correctional Law Digest, published at the University of Toledo, Frank S. Merritt (ed.). See also Charles F. Morgan, Michael A. Millemann, & Joyce R. Branda, The Rights of Prisoners and Patients: A Litigation Handbook (Chicago: American Bar Association, 1978); the Mental Disability Law Reporter, published by the American Bar Association's Commission on the Mentally Disabled; and the Clearinghouse Review, published by the National Clearinghouse for Legal Services, Mary Ader (ed.).Google Scholar

4 Some of the recent prison cases using masters to implement the decree include Taylor v. Perini, 413 F. Supp. 189 (N.D. Ohio 1976); Jones v. Wittenberg, 73 F.R.D. 82 (N.D. Ohio 1976); Jackson v. Hendrick, 309 A.2d 187 (Pa. 1973), rev'd, 321 A.2d 603 (Pa. 1974); Jordan v. Wolke, 75 F.R.D. 696 (E.D. Wis. 1977); Holland v. Donelon, unreported decision, No. 71–1442 (E.D. La. May 16, 1972); Hamilton v. Schiro, 338 F. Supp. 1016 (E.D. La. 1970); Gates v. Collier, 349 F. Supp. 881 (N.D. Miss. 1972), Amended Order of Sept. 7, 1973, No. GC 71–6-K, 501 F.2d 1291, 1321 (5th Cir. 1974); Cherry v. Little, No. LR 71-C89 (E.D. Ark. Sept. 10, 1973); Palmigiano v. Garrahy, 443 F. Supp. 956 (D.R.I. 1977); Morales v. Turman, 383 F. Supp. 53 (E.D. Tex. 1974). In the mental institutions context there are: Davis v. Watkins, 384 F. Supp. 1196 (N.D. Ohio 1974); Pennsylvania Ass'n for Retarded Children v. Pennsylvania, 334 F. Supp. 1257 (E.D. Pa. 1971); Wyatt v. Stickney, 325 F. Supp. 781 (N.D. Ala. 1978) (“Human Rights Committee”%). In addition, the use of special masters is presently under consideration in major new institutional litigation in Alabama and Tennessee.Google Scholar

5 The National Institute of Corrections and the Federal Judicial Center have been working and are continuing to work to channel this concern into a formal study. The NIC funded the planning work that led to this paper. See note 13 infra.Google Scholar

6 See Comment, Confronting the Conditions of Confinement: An Expanded Role for Courts in Prison Reform, 12 Harv. C.R.-C.L.L. Rev. 367, 369 (1977).Google Scholar

7 See id. at 369 n.12.Google Scholar

8 Id. at 369 and nn.10, 11, & 12.Google Scholar

9 Id. at 368 and n.8.Google Scholar

10 Karen C. Smithson, The Special Master in Correctional Cases: A Preliminary Survey, 9 Clearinghouse Review 15–18 (1975).Google Scholar

11 The most important of these is a recent issue of the Columbia Law Review (vol. 78, May 1978 (not available until the spring of 1979), at 707–929), which was especially devoted to studies of decree implementation and special masters. For the most thorough and academically useful treatment in that issue, see Special Project, The Remedial Process in Institutional Reform Litigation, id. at 784–929. For an interesting and readable personal account of the special master experience in a school desegregation case (Hart v. Community School Bd., 383 F. Supp. 699 (E.D. N.Y. 1974)), see Curtis J. Berger, Away from the Court House and into the Field: The Odyssey of a Special Master, id. at 707–38. The other two publications, also quite useful, are: Note, “Mastering” Intervention in Prisons, 88 Yale L.J. 1062 (1979); and Vincent M. Nathan, The Use of Masters in Institutional Reform Litigation, 10 Toledo L. Rev. 419 (1979).Google Scholar

12 M. Kay Harris & Dudley P. Spiller, Jr., After Decision: Implementation of Judicial Decrees in Correctional Settings (Washington, D.C.: National Institute of Law Enforcement and Criminal Justice, 1977).Google Scholar

13 This study is being conducted by the Federal Judicial Center under the direction of Gordon Bermant and Alan Chaset. One of its by-products is the Toledo Law Review article, supra note 11, written by the special master of Taylor v. Perini and Jones v. Wittenberg.Google Scholar

14 See Joel B. Harris, The Title VII Administrator: A Case Study in Judicial Flexibility, 60 Cornell L. Rev. 53 (1974); Harvard Center for Criminal Justice, Judicial Intervention in Prison Discipline, 63 J. Crim. L.C. & P.S. 200 (1972); Frank M. Johnson, The Constitution and the Feder-al District Judge, 54 Tex. L. Rev. 903 (1976); Irving R. Kaufman, Masters in the Federal Courts: Rule 53, 58 Colum. L. Rev. 452 (1958); William Bennett Turner, Establishing the Rule of Law in Prisons: A Manual for Prisoners' Rights Litigation, 23 Stan. L. Rev. 473 (1971); Comment, Con-fronting the Conditions of Confinement: An Expanded Role for Courts in Prison Reform, 12 Harv. C.R.-C.L.L. Rev. 367 (1977); Comment, Cruel but Not So Unusual Punishment: The Role of the Federal Judiciary in State Prison Reform, 7 Cum. L. Rev. 31 (1976); Comment, The Environmental Court Proposal: Requiem, Analysis, and Counterproposal, 123 U. Pa. L. Rev. 676 (1975); Note, Masters and Magistrates in the Federal Courts, 88 Harv. L. Rev. 779 (1975); Note, Monitors: A New Equitable Remedy? 70 Yale L.J. 103 (1960); Note, Receivership as a Remedy in Civil Rights Cases, 24 Rutgers L. Rev. 115 (1969); and Note, The Wyatt Case: Implementation of a Judicial Decree Ordering Institutional Change, 84 Yale L.J. 1338 (1975).Google Scholar

15 See John P. Dawson, A History of Lay Judges 145–72 (Cambridge: Harvard University Press, 1960); Stanley N. Katz, The Politics of Law in Colonial America: Controversies Over Chancery Courts and Equity Law in the Eighteenth Century, in Donald Fleming & Bernard Bailyn (eds.), Law in American History (Boston: Little, Brown & Co., 1971). See also Note, Monitors, supra note 14, at 106; James R. Bryant, The Office of Master in Chancery: Early English Development, 40 A.B.A.J. 498 (1954). And, generally, I William Holdsworth, A History of English Law, ch. V, 395–476 (7th ed. London: Methuen & Co., 1956); and 1 Spence, Equity Jurisdiction of the Court of Chancery (1946 ed.).Google Scholar

16 Dawson, supra note 15, at 159–63. The English masters reached the height of their powers during the late sixteenth and early seventeenth centuries, when, for brief experimental periods, they shared decision-making power with the Chancellor.Google Scholar

17 See sources cited, supra note 15. That the term “clerks” and the “mechanical” nature of the masters' duties indicate an insignificant role is a mistaken inference. (see especially Bryant and Dawson, supra note 15). The rare mechanical or technical expertise that the masters possessed gave them wide discretionary powers that must have had significant substantive implications.Google Scholar

18 Spence, supra note IS, at 359.Google Scholar

19 See, e.g., Johnson, supra note 14.Google Scholar

20 James R. Bryant, The Office of Master in Chancery: Colonial Development, 40 A.B.A.J. 595 (1954); 1 Clark on Receivers 7 (1959 ed.).Google Scholar

21 See Katz, supra note 15, at 263.Google Scholar

22 Id. at 264–65. Katz contends that the colonials' objections were never so much to the equity laws and principles themselves as to the equity courts as historical, political institutions.Google Scholar

23 See Equity, 27 Am. Jur. 2d § 4, at 520–22. See also G. W. Foster, Jr., The Status of Class Action Litigation, A.B.F. Res. Contr. 1974, No. 4, at 5. The Constitution of the United States extends judicial power to equity as well as to law (Art. Ill, Sec. 2). The United States Congress, as did most state legislatures, chose to vest equity jurisdiction in the regular law courts.Google Scholar

24 Kimberly v. Arms, 129 U.S. 512 (1889). See also Quinby v. Conlan, 104 U.S. 420 (1881).Google Scholar

25 Fed. R. Civ. P. 53, 5A Moore's Federal Practice, at 2901–4 (2d ed. 1976).Google Scholar

26 E.g., Ga. Code Ann. § 10–102 (1936); Fla. Stat. Ann. § 56.02(6) (1943); Tenn. Code Ann. § 20–1405 (1955); N. Mex. Stat. Ann. Art. 4 § 20–4–101 (1973 Supp.); Wis. Stat. § 901.01–911.02 (1973 Supp.); Nevada Rev. Stat. § 47.020–53.070 (1973); Iowa R. Civ. P. 207–14 (1951).Google Scholar

27 Fed. R. Civ. P. 53, 5A Moore's Federal Practice, at 2901–4 (2d ed. 1976).Google Scholar

28 226 U.S. 649 (1912). See Note, Masters, supra note 14, at 789.Google Scholar

29 5A Moore's Federal Practice, at 2901 (2d ed. 1976).Google Scholar

30 See also Bartlett v. Gates, 118 F. 66 (C.C. Colo. 1902), and Ex parte Peterson, 253 U.S. 300 (1920), particularly as to the “inherent” equity powers of the courts to appoint masters (i.e., apart from authority explicitly conferred by federal practice rules and the like).Google Scholar

31 129 U.S. 512, at 516 (1889).Google Scholar

32 129 U.S. 512, 523, 524 (1889).Google Scholar

33 129 U.S. 512, 523 (1889).Google Scholar

34 129 U.S. 512, 524 (1889).Google Scholar

35 See 5A Moore's Federal Practice, 1 53.12(4) and case notes, at 3007–21 (2d ed. 1976).Google Scholar

36 See McCullough v. Cosgrave, 309 U.S. 634 (1940); La Buy v. Howes Leather Co., 352 U.S. 249 (1957). Cf. Los Angeles Brush Manufacturing Corp. v. James, 272 U.S. 701 (1927), and Holt Mfg. Co. v. C.L. Best Gas Traction Co., 245 F. 354 (N.D. Cal. 1917).Google Scholar

37 See particularly 5A Moore's Federal Practice, 1 53.05(1) and (2) (2d ed. 1976). See also Note, Monitors, supra note 14; Note, Masters, supra note 14; and La Buy v. Howes Leather Co., 352 U.S. 249, 254 (1957).Google Scholar

38 2 Street, Federal Equity Procedure 1399 (1909). See also Note, Monitors, supra note 14, at 109; Burleson v. Hayutin, 130 Colo. 58, 273 P.2d 124 (1954). Or, as another authority put it, masters in effect can become involved in the handling of “most everything a judge wishes.” Note, Masters, supra note 14, at 780.Google Scholar

39 5A Moore's Federal Practice, § 53.06, at 2972 (2d ed. 1976). See also Jackson v. Hendrick, 309 A.2d 187 (Pa. 1973), rev'd, 321 A.2d 603, 605–6 (Pa. 1974); and, generally, Kimberly v. Arms, 129 U.S. 512 (1889).Google Scholar

40 In re Gilbert, 276 U.S. 6 (1928) as quoted in Hart v. Community School Bd. of Brooklyn, 383 F. Supp. 699, 764 (E.D.N.Y. 1974); 5A Moore's Federal Practice, § 53.03 (2d ed. 1976).Google Scholar

41 5A Moore's Federal Practice, § 53.05(2), at 2962, § 53.06, at 2972 (2d ed. 1976).Google Scholar

42 The contradictory strains are evident in the wording of Rule 53(c) alone and also in comparison with § 53.06 (5A Moore's Federal Practice at 2966–67 (2d ed. 1976)). See also Kimberly v. Arms, 129 U.S. 512, 524 (1889); Jackson v. Hendrick, 309 A.2d 187 (Pa. 1973), rev'd, 321 A.2d 603 (Pa. 1974).Google Scholar

43 5A Moore's Federal Practice, § 53.06, at 2969 (2d ed. 1976), citing Pathe Laboratories, Inc. v. du Pont Film Mfg. Corp., 3 F.R.D. 11 (S.D.N.Y. 1943).Google Scholar

44 Ex parte Petersen, 253 U.S. 300 (1920): master assigned task of making predisposition fine regarding breach of sales contract and the possible impact and extent of related transactions prior indebtedness. United States v. United Shoe Machinery Corp., 110 F. Supp. 295 (D. M 1953): use of masters (economic experts) in complex antitrust litigation. In re Hotel Governor C ton, Inc., 107 F.2d 398 (S.D.N.Y. 1939): use of master in bankruptcy reorganization proceedi including initial jurisdictional determination. York Corp. v. Brock, 405 F.2d 759 (5th Cir. 19 master appointed to evaluate “multitude of conflicting claims” in bankruptcy. Arizona v. Cali nia, 347 U.S. 986 (1954), and Mississippi v. Arkansas, 402 U.S. 926 (1971): special masters use determine the facts in interstate boundary/water rights disputes. Los Angeles Brush Corp. v. Jar 272 U.S. 701 (1927): routine reference of patent infringement cases to master (cf. note 36 sup Smith v. Brown, 3 F.2d 926 (5th Cir. 1925): master to determine validity of land title and deer sale. United States v. 3,065.94 Acres of Land, 187 F. Supp. 728 (S.D. Cal. 1960): “commissiont assess property values in eminent domain proceedings. Magnaleasing, Inc. v. Staten Island Mall, F. Supp. 1039 (S.D.N.Y. 1977), aff'd per curiam, 563 F.2d 567 (2d Cir. 1977): “magistrate” to facts on volume and rate of leasings, tax rates, etc., in litigation alleging fraud and misrepresetion by landlord in securing lease agreement.Google Scholar

45 171 F. Supp. 580 (S.D. Cal. 1959).Google Scholar

46 6 F.R.D. 597 (D. Del. 1947).Google Scholar

47 Fed. R. Civ. P. 70, 7-Pt. 2 Moore's Federal Practice, § 70.01-.03 (1978).Google Scholar

48 Id.Google Scholar

49 Memorandum accompanying order of reference, Taylor v. Perini, Civ. No. C. 69–275 (N.D. Ohio 1975).Google Scholar

50 For this information, see the five special master reports at 413 F. Supp. 189, 198 (N.D. Ohio 1976); 421 F. Supp. 740, 742 (N.D. Ohio 1976); 431 F. Supp. 566, 570 (N.D. Ohio 1977); 446 F. Supp. 1184, 1186 (N.D. Ohio 1978); and 455 F. Supp. 1241, 1255 (N.D. Ohio 1978).Google Scholar

51 See text at note 37 supra.Google Scholar

52 Abram Chayes, The Role of the Judge in Public Law Litigation, 89 Harv. L. Rev. 1281 (1976), giving useful content to the cliche. See also Foster, supra note 23, at 12; and Donald L. Horowitz, The Courts and Social Policy (Washington: Brookings Institution, 1977).CrossRefGoogle Scholar

53 See Note, Monitors, supra note 14.Google Scholar

54 See Chayes, supra note 52, especially at 1282–83 and 1302.Google Scholar

55 The “traditional” vs. the “new” contrasts drawn in each of the following five points come almost directly from material in Professor Chayes's piece, particularly the outlines presented at the pages cited. The final connection made to the institutional context is original. All material quoted is from the Chayes article.Google Scholar

56 Note, Monitors, supra note 14, at 107–8.Google Scholar

57 Id. at 108. See also Foster, supra note 23, at 12.Google Scholar

58 Foster, supra note 23, at 12. See also Bartlett v. Gates, 118 F. 66 (C.C.C.D. Colo. 1902); cf. O'Neill v. United Ass'n of Journeymen Plumbers, 348 Pa. 531, 36 A.2d 325 (1944).Google Scholar

59 Note, Monitors, supra note 14, at 108 and nn.46–49.Google Scholar

60 E.g., Charles A. Reich, The New Property, 73 Yale L.J. 733 (1964).Google Scholar

61 Note, Monitors, supra note 14, at 107.Google Scholar

62 Bartlett v. Gates, 118 F. 66 (C.C.C.D. Colo. 1902).Google Scholar

63 See section infra on the “civil rights connection.”Google Scholar

64 See section infra on the “institutional cases” as well as the Taylor v. Perini judicial memorandum quoted at the outset of this section.Google Scholar

65 E.g., Brown v. Bd. of Educ., 347 U.S. 483 (1954); Cooper v. Aaron, 358 U.S. 1 (1958); Wright v. Georgia, 373 U.S. 284 (1963); Watson v. Memphis, 373 U.S. 526 (1963); South Carolina v. Katzenbach, 383 U.S. 301 (1966); Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964); Reitman v. Mulkey, 87 S. Ct. 1627 (1967).Google Scholar

66 Evans v. Newton, 382 U.S. 296 (1966); Pennsylvania v. Bd. of Trusts, 353 U.S. 230 (1957).Google Scholar

67 347 U.S. 483 (1954).Google Scholar

68 347 U.S. 483, 495–96 at n.13 (1954).Google Scholar

69 See Note, Supreme Court Equity Discretion: The Decrees in the Segregation Cases, 64 Yale L.J. 124 (1954).Google Scholar

70 Turner v. Goolsby, 255 F. Supp. 724 (S.D. Ga. 1966); Swann v. Charlotte-Mecklenburg Bd. of Educ., 306 F. Supp. 1291 (W.D.N.C. 1969); Armstrong v. O'Connell, 416 F. Supp. 1325 (E.D. Wis. 1976); Hart v. Community School Bd., 383 F. Supp. 699 (E.D.N.Y. 1974); Morgan v. Kerrigan, 523 F.2d 917 (1st Cir. 1975); Morgan v. McDonough, 540 F.2d 527 (1st Cir. 1976); Bradley v. Milliken, 345 F. Supp. 914 (E.D. Mich. 1972); Knight v. Bd. of Educ., 48 F.R.D. 115 (E.D.N.Y. 1969).Google Scholar

71 384 F. Supp. 37 (N.D. Ill. 1974). Also, Chicago Hous. Auth. v. Austin, 511 F.2d 82 (7th Cir. 1975).Google Scholar

72 361 F. Supp. 603 (N.D. Miss. 1972).Google Scholar

73 Civil No. 899–67 (D.N.J. 1967), discussed in Note, Receivership, supra note 14, at 115–18.Google Scholar

74 Note, Receivership, supra note 14, at 115, passim.Google Scholar

75 40 L.R.R.M. 2650 (D.D.C. 1957).Google Scholar

76 42 U.S.C. 2000e–5 (1970).Google Scholar

77 15 U.S.C. 80a–41(e) (1970).CrossRefGoogle Scholar

78 75 F.R.D. 696 (E.D. Wis. 1977).Google Scholar

79 525 F.2d 1239 (5th Cir. 1976). Another distinct aspect of these cases is that the masters were appointed for an “in-between” phase of the litigation–after the preliminary decree (injunction), but prior to a final order.Google Scholar

80 406 F. Supp. 318 (M.D. Ala. N.D. 1976). See also Palmigiano v. Garrahy, 443 F. Supp. 956 (D.R.I. 1977); Cruz v. Hauck, 515 F.2d 322 (5th Cir. 1975).Google Scholar

81 No. 71–2437 (Pa. C.P. Phila. 1972), rev'd, 309 A.2d 187 (Pa. 1973), rev'd, 321 A.2d 603 (Pa. 1974). The intermediate court (Commonwealth Ct. of Pa.) in Jackson invalidated the master appointment precisely because the functions as designated were too broad and insufficiently distinguishable from judicial functions.Google Scholar

82 See note 81 supra. Rare are the cases–Newman v. Alabama, 559 F.2d 283 (5th Cir. 1977) and Jones v. Wittenberg, 73 F.R.D. 82 (N.D. Ohio 1976) are two–where the courts have gone in the opposite direction and have seen the need to deliberately and specifically curtail the functions of the master.Google Scholar

83 Article 111 and the Tenth and Seventh Amendments, respectively, of the U.S. Constitution are at issue.Google Scholar

84 The present evidence is that the masters are often not experts. The master in two of the leading prison cases was a university professor of commercial law. He was not an “expert” until his appointment in the second case. In another case, where the prison architecture was a primary issue, the master had neither architectural nor prison law experience but was well acquainted with, and had the “special confidence” of, the appointing judge (Jordan v. Wolke, 75 F.R.D. 696, 701 (E.D. Wis. 1977)).Google Scholar

85 For example, there are straightforward facts on the order of the fee for the master in Jordan v. Wolke, 75 F.R.D. 696 (E.D. Wis. 1977), being $60 per hour, and that the total fee near the closing of the case had come to slightly over $7,250. In Taylor v. Perini, 413 F. Supp. 189 (N.D. Ohio 1976), the master billed at $30 per hour, and at the termination of the case his total in fees and expenses had come to $63,647 (Nathan, supra note 11, at 441). These costs were charged to the defendants. More difficult to track and interpret would be items such as the $75,000 “fine” assessed by the court against the defendant in Jackson v. Hendrick, 309 A.2d 187 (Pa. 1973), rev'd, 321 A.2d 603 (Pa. 1974), for failure to comply, a sum that was then awarded to the plaintiff inmates to be allocated by them, in consultation with the master, for institutional improvements.Google Scholar