ADR Prof Blog

Prof. Michael Moffitt, associate dean at the University of Oregon School of Law, was kind enough to give a shout out to Letters Blogatory on his blog, ADR Prof Blog, and I’d like to return the favor. His blog (other contributors include Andrea Schneider, Sarah Cole, Art Hinshaw, Jill Gross, and Cynthia Alkon) covers all things ADR. In addition to original commentary, Mike’s recent posts bring material from around the web (SSRN and elsewhere) to light. Check it out!

Mike and I were both law clerks (though not at the same time) to the late Hon. Ann Aldrich, who died last year. Judge Aldrich was the first woman appointed to the federal bench in Ohio. As a lawyer, she was probably best known for arguing United Church of Christ v. FCC, 359 F.2d 994 (D.C. Cir. 1966), which established that a third party could have standing to challenge the FCC’s grant of a license to operate a TV station to someone else (in the case, the UCC appealed the FCC’s decision to grant a license to a station whose programming was racially and religiously discriminatory). Judge Aldrich had a lifelong interest in the public airwaves: she twice represented the United States at the World Administrative Radio Conference (International Telecommunications Union) in Geneva, and she was a longtime member of the Spectrum Planning Advisory Committee.

Over her thirty years on the bench, she wrote many significant opinions. I’d like to recall one of the cases she decided during my term as clerk: Roman v. Ashcroft, 162 F.Supp.2d 755 (N.D. Ohio 2001). Roman was an alien who had been convicted of a crime in Ohio and was about to be deported, but what was then called the INS was holding him in Louisiana, where the courts were overburdened with people in his situation seeking habeas corpus relief. Because there was a risk he could not obtain relief in Louisiana before he was deported, Roman filed a petition for habeas corpus in Cleveland, where he had been convicted. The main question in the case was whether the petition should be dismissed because Roman had not named his immediate custodian (the warden of the INS facility in Louisiana) as respondent. Judge Aldrich focused on substance, not form. She noted that as applied to federal prisoners, the immediate custodian rule had no sound policy behind it. The usual justification for the rule was that the immediate custodian was the person able to bring the prisoner into court, but in Section 2255 cases, there was no such rule, and the government was invariably able to produce prisoners in the district of conviction when required (which was rarely) no matter where they were imprisoned. She argued that the wording of the ancient writ (“habeas corpus”–“you are to have the body”) ought not to influence the outcome of the case:

As the Supreme Court has noted, “habeas corpus” is literally a command that the respondent “have the body” of the prisoner with him in court on the return day. But this Court can only hope that we are long past the time when the ancient wording of a writ is thought to limit the relief available.

Roman was decided shortly before 9/11. In post-9/11 decisions, the Sixth Circuit and , in Rusmfeld v. Padilla, 542 U.S. 426 (2004), the Supreme Court rejected the reasoning of Roman and approved the immediate custodian rule, proving, I suppose, the truth of Maitland’s famous observation that “The forms of actlon we have buried, but they still rule us from their graves.”

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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