ADR and Settlement in the Federal District Courts: A Sourcebook for Judges and Lawyers

Elizabeth Plapinger, CPR Institute for Dispute Resolution, and Donna Stienstra, Federal Judicial Center

A joint project of the Federal Judicial Center and the CPR Institute for Dispute Resolution 1996

The sourcebook was undertaken to further the Federal Judicial Center's statutory mission to conduct and stimulate research and development for the improvement of judicial administration. The views expressed are those of the authors and not necessarily those of the Federal Judicial Center.

The sourcebook was undertaken to further CPR's mission to promote sound understanding of ADR use in the public justice system. The views expressed are those of the authors and are not necessarily those of the CPR Institute for Dispute Resolution.



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Part I: Introduction and Analysis

Introduction

Patterns in Federal Court ADR

Court-Based ADR Programs: How Many, What Kind, and How Old?
How Many Cases in ADR?
Referring Cases to ADR: The Shift from Referral by Case Type to the Judge as ADR Catalyst and Educator
ADR Obligations of Attorneys and Litigants
Timing of the ADR Session and Integration into Case Management
The Central Role of Attorney-Neutrals and Litigants
Fees for ADR: Parties Generally Must Pay
Increasing Formalism and Institutionalization of ADR

ADR Quality and Court Resources

Notes

Introduction

Over the past several years, the use of alternative dispute resolution (ADR) techniques has been growing in significance and popularity, having served parties in disputes both large and small, from international conflicts to neighborhood arguments. Because ADR techniques are used with increasing frequency in such everyday settings as schools, churches, and workplaces, many people are now becoming acquainted with these new approaches to problem solving.

Courts and members of the legal community have been part of the movement seeking means other than litigation for resolving disputes. Someone filing a case today in federal court is far more likely than ten or even five years ago to be asked to consider some form of settlement assistance, and at all levels of the courts ADR is increasingly a part of discussions about how to manage litigation.

These recent developments should not be misread as suggesting that ADR is new to the federal courts. Experimentation with ADR -- which in the federal courts encompasses arbitration, mediation, early neutral evaluation, settlement week, case valuation, and summary jury trials -- began more than twenty years ago. In the district courts, the first mediation and arbitration programs date from the 1970s. Innovations of the 1980s include the summary jury trial and early neutral evaluation. Additional expansion of ADR occurred in 1988 when Congress authorized ten district courts to implement mandatory arbitration programs and an additional ten to establish voluntary arbitration programs (28 U.S.C. §§ 651-658).

A further impetus to ADR came with passage of the Civil Justice Reform Act of 1990 (CJRA), which requires all district courts to develop, with the help of an advisory group of local lawyers, scholars, and other citizens, a district-specific plan to reduce cost and delay in civil litigation (28 U.S.C. §§ 471-482). ADR is one of the six civil case management principles recommended by the statute. Today, five years into the CJRA experiment, most district courts have authorized or established some form of ADR.

With this expansion of court-based ADR, a great need has arisen for information about the federal court programs. This sourcebook is a response to that need. It provides a district-by-district compendium of current ADR and settlement procedures in the district courts. Written for several audiences, the guide provides key information for judges who design and refer cases to dispute resolution programs; for lawyers and litigants who face increasingly complex dispute resolution choices and obligations; and for policy makers and researchers at local and national levels who evaluate current programs and make recommendations for the future.

The district-by-district descriptions can be found in Part II of the sourcebook, where we also define each type of ADR technique used in the federal courts, describe the sources of our information, and note several decisions we made in compiling the great amount of material we received from the courts. Before proceeding to the information about the courts' programs, though, we want to step back from the details and sketch out some of the patterns we've come to see in the courts' approaches to ADR.

Patterns in Federal District Court ADR

Our discussion in this section relies in part on a set of tables we prepared to help make system-wide comparisons and to illuminate features that are common across courts. The tables may be found at page 14, along with a note explaining how courts were classified for purposes of the tables. For this discussion, it is sufficient to note that we are focusing on court-based ADR programs - those that are managed by the court, are based in most instances on formal rules and procedures, and rely (with a few exceptions) on attorney-neutrals to provide the ADR service. We should also note that the information in the tables and discussed below was derived from a survey we sent to the courts and our review of court rules and other written court materials.

Court-Based ADR Programs: How Many, What Kind, and How Old?

Mediation has emerged as the primary ADR process in the federal district courts (see Table 1). In marked contrast to five years ago when only a few courts had court-based programs for mediation, over half of the ninety-four districts now offer -- and, in several instances, require -- mediation. Most mediation offered in the federal courts is administered wholly by the courts; only a few districts provide mediation through referral to bar groups or private ADR provider organizations.

Arbitration is the second most frequently authorized ADR program, but falls well short of mediation in the number of courts that have implemented it. In addition to eighteen statutorily authorized courts, two others (Northern District of Alabama and Eastern District of Washington) offer arbitration as the second step of a combined mediation/arbitration procedure. Several others authorize use of arbitration but have not established court-annexed programs.1 The infrequent adoption of arbitration may be in part the result of uncertainty over whether courts other than those authorized by statute may establish arbitration programs.2

Use of early neutral evaluation (ENE) has increased from two courts five years ago, but still is used in only fourteen courts. Limited ENE adoption under the CJRA may reflect uncertainty about the nature of this relatively new form of ADR or about its relation to mediation. Recently, one of the first two courts to use ENE -- the District of Columbia -- disbanded its program, finding it unnecessary in light of the court's substantial mediation program.

Settlement week and case valuation, the last two forms of court-wide ADR programs, are found in even fewer courts, with three offering a settlement week program and two offering case valuation. Both case valuation programs are in Michigan, where the federal court programs are based on a state program.

Just over half the courts report authorization or use of the summary jury trial. With little information about past practices, we do not know whether this represents a change, but our guess is that, as with other forms of ADR, the number of courts authorizing summary jury trial has grown substantially over the past five years. The level of usage reported by most courts is, however, very low -- generally around one or two cases a year.

Also noteworthy is the number of courts that now offer a variety of ADR options. During the past several years, most of the ten courts authorized to establish mandatory arbitration programs in the 1980s have added mediation to their offerings. It is not uncommon today to find at least two ADR procedures available in many federal courts, and at least six courts now offer a full array of options, including arbitration, mediation, early neutral evaluation, and summary jury trial.

The range and number of federal district court ADR programs is particularly noteworthy in light of their recency: most have been implemented since 1990 (see Tables 3 through 7, second column). Although there are some long-standing programs, in particular several arbitration and mediation programs that date from the 1970s, and despite the 1983 authorization provided by amendments to Federal Rule of Civil Procedure 16, use of "extra-judicial procedures to resolve the dispute" did not fully emerge until the 1990s.3

For a complete picture of each court's approach to settlement, we must also look at Table 3, which attests to the continuing viability of judicial settlement efforts and the expanding role of magistrate judges in settlement. Most courts, even those with substantial ADR programs, provide judicial settlement assistance. Particularly noteworthy in Table 3 are the many courts -- at least a third -- that have designated magistrate judges as the court's primary settlement officers. While in-depth study of judicially hosted settlement procedures was beyond the scope of this project, our work demonstrates continuing experimentation in the courts to determine the best mix of judicial and nonjudicial settlement programs.

How Many Cases in ADR?

Of great interest to many is the number of cases going into these ADR programs. Tables 3 through 7 report the number of cases referred to each of the principal forms of court-based ADR. For several reasons, these numbers should be used cautiously. First, the courts were asked for the number of cases referred to ADR, not how many cases actually participated in or were resolved by ADR. Second, because ADR caseloads are not reported nationally, and in many courts the procedures for recording ADR information are rudimentary, the courts themselves frequently offered their ADR figures as only approximations. Third, large numbers should not be equated with a successful program and smaller numbers with a less successful one. A mediation program that targets complex cases, for example, may be a great success in the court's and litigants' eyes if it resolves two dozen cases a year, whereas a voluntary arbitration program that is available for all civil cases but attracts only a few each year may be a great disappointment.

It seems safe, nonetheless, to say that courts with automatic referral by case type, as in the mandatory arbitration programs and a few mediation programs, have fairly substantial ADR caseloads -- for example, 1,235 arbitration cases in New Jersey, 292 mediation cases in the Middle District of North Carolina. The voluntary arbitration courts with opt-out instead of opt-in procedures also have significant caseloads -- for example, 266 cases in the Western District of Pennsylvania.4 Mandatory referral is not, however, essential for moving large numbers of cases into mediation, as we can see from the 414 cases in the Northern District of Oklahoma and the 580 cases in the Northern District of Texas. Early neutral evaluation also draws a good number of cases in several districts, as shown by the 89 cases in the Northern District of Ohio.

It is almost impossible at this time to draw any conclusions about the effectiveness of ADR from these ADR caseload figures. The tables show the substantial variation across courts, but close examination of referral processes, local attitudes toward ADR, the nature of the caseload, and other variables is needed before this variation can be explained. Fortunately, several courts are planning evaluations of their ADR programs, and two national studies required by the CJRA will also contribute to our understanding.5

Referring Cases to ADR: The Shift from Referral by Case Type to the Judge as ADR Catalyst and Educator

During the past several years, there has been substantial attention in the federal courts to the issue of how cases are referred to ADR, a debate centered largely on the pros and cons of mandatory versus voluntary referral to arbitration. With the emergence of mediation as the primary ADR process, however, and the abandonment of several mandatory arbitration programs,6 the principal referral mechanisms used today are notably different from those used a few years ago.

Few of the mediation programs refer cases mandatorily and automatically by case type. Most leave to the judge or parties the identification of cases suitable for ADR.

Whether the referral is made sua sponte or at the request of one or more parties (both of which are authorized in most programs), the judge has become the focal point for identifying cases appropriate for ADR and for educating attorneys and parties about it. Rather than remaining in the background, as in the mandatory arbitration programs, the newer forms of ADR expect the judge to be very much at the center of ADR use.

Even within the arbitration programs, the picture is much more nuanced than the terminology suggests. In the so-called mandatory programs, for example, the referral is only presumptively mandatory. Courts with these programs provide mechanisms for seeking removal from arbitration, and some courts readily grant such removal. Variation is also found in the voluntary programs, with several courts adhering to the textbook model of participation only if the parties voluntarily come forward, but with several others automatically referring cases on the basis of objective criteria and then permitting unquestioned opt-out by the parties.7

Nonetheless, a significant change has taken place with the advent of mediation, which places greater emphasis on judicial involvement in the ADR referral than arbitration has.

ADR Obligations of Attorneys and Litigants

Along with the increased ADR responsibility that rests with the judge, a similar responsibility now falls on attorneys and parties. Courts expect attorneys to be knowledgeable about ADR in general and about the court's ADR programs in particular (see in-brief descriptions in Part II). Many courts' local rules now require attorneys to discuss ADR with their clients and opponents, to address in their case management plan the appropriateness of ADR for the case, and to be prepared to discuss ADR with the judge at the initial Rule 16 scheduling conference.

These rules indicate the extent to which the courts now expect attorneys to work with the judge to determine whether ADR should be used in a case and, if so, what kind of ADR should be used. The attorneys' and judge's responsibilities merge at the initial case management conference, which in many courts has become the critical event -- or the first of several -- in determining how and when ADR will be used in the case.

In the ADR event itself -- that is, the mediation session, the ENE conference, or the summary jury trial -- clients are generally required to attend.8 Most courts have not, however, defined the level or kind of participation required by parties and their counsel.

Timing of the ADR Session and Integration into Case Management

With the emphasis on case-by-case screening for ADR and the importance of the Rule 16 conference has come a shift in the timing of ADR--or perhaps a recognition that ADR can be used earlier in the case has prompted the emphasis on the Rule 16 conference. In any event, whereas in the past many considered ADR appropriate only for trial-ready cases, now ADR is more often integrated into a court or judge's overall case management practices and is considered much earlier in the case.

This is and has been particularly true of ENE, which was designed to provide an early evaluation of a case's merits and was not originally intended as a settlement device. Even for settlement-oriented procedures such as mediation the process is now likely to occur earlier in the case. It occurs very early in some courts, such as the Western District of Missouri, where the first mediation session is held within thirty days of filing of the answer, and the Eastern District of Pennsylvania, where the conference is held as soon as possible after the first appearance of the defendant. Across all courts, it is not uncommon today for discovery planning to be linked to the mediation process and for the mediation session to take place before discovery has been completed.

The Central Role of Attorney-Neutrals and Court Rosters

Although some courts provide mediation or early neutral evaluation through judges or magistrate judges, most of the courts' ADR programs rely on nonjudicial neutrals. Tables 3 through 7 show that most of the mediators, arbitrators, and other neutrals used by the courts are attorneys, with other professionals occasionally authorized to serve in that role.

Not only are attorneys the mainstay of most ADR programs, but in nearly every district the court has created its own roster rather than relying on an already-established list of neutrals or turning to private-sector ADR providers for these services.9 For example, of the forty-three mediation programs that use nonjudge neutrals, only three rely on an outside organization, such as a bar association or state mediation program, to provide the ADR services. In contrast, one court (Western District of Missouri) has brought one of its ADR processes fully in-house by hiring an experienced litigator to serve as the court's neutral in cases referred to mediation.

Most courts set eligibility criteria for inclusion on the roster, and a significant number of courts include on the roster any person certified as an ADR neutral by a bar association or state court system. This is true for training as well, with some courts accepting as sufficient the training neutrals have received from other court systems or organizations. On the other hand, some courts completely control the training of their neutrals, either by conducting the training themselves or by screening and hiring trainers.

The emergence of court-managed rosters has brought with it a number of new questions for the courts. One of the most obvious is the question of training. Given the great range of approaches courts take to training -- including requiring none -- can litigants have confidence in the courts' ADR processes? Should minimum national training standards be established? A less obvious but also important question is whether neutrals have judicial immunity. Few of the courts' rules speak to this question (perhaps in a belief that the question is more appropriate for case law).10 Only slightly more address the question of conflicts of interest between the neutral attorney's role as mediator and his or her role as counsel. When and under what circumstances, for example, is an attorney-neutral barred from serving as counsel in future disputes?11

As these issues become more urgent, a few individual federal courts (and some state court systems) are developing ethical guidelines or standards of practice for the neutrals on their rosters.12 Several professional organizations of lawyers and ADR neutrals are also engaged in efforts to define ethical standards for ADR practice.13 These issues are prompting commentators to ask an even more fundamental question: Are rosters of attorneys the optimum method for providing ADR services or should judges, court staff, or private sector ADR providers deliver these services instead?

Fees for ADR: Parties Generally Must Pay

In a significant shift from past practice, most courts now require parties to pay a fee to the neutral (except in the arbitration programs, where arbitrator fees are paid from congressional appropriations). In the first mediation programs, the neutrals generally provided their services pro bono. Today, of the forty-one courts offering attorney-based mediation, only nine provide that service pro bono (and one, as already mentioned, provides mediation through a staff mediator). Three others generally offer mediation without fees, although in some circumstances the parties may be required to pay the mediator. The remaining courts -- that is, two-thirds of the courts with mediation programs -- require that parties pay a fee (see Tables 3-7).

The courts generally use one of four different approaches to determine the fee: market rate, court-set rate, pro bono, or court-set fee after a specified number of pro bono hours. A market-rate fee, found in ten courts, is the most common; a number of these courts, however, reserve the right to review the reasonableness of the fee. Eight courts specify a set fee, which may be either an amount per hour (for example, $150 per hour) or an amount per session (for example, $250 per session). Five courts authorize both a market-rate and court-set fee, reserving to the judge the discretion to determine which type of fee arrangement is best for each case. In four courts the neutral must serve pro bono for a specified number of hours, ranging from one to six, before the parties must pay either a court-set or market-rate fee.

In recognition that some parties cannot afford to pay a fee, a number of courts -- e.g., nine of the forty-three attorney-based mediation programs -- include special provisions in their rules regarding low-income or indigent parties, generally waiving the fee altogether. To provide this service, some courts require those selected from the court's roster to serve pro bono for a specified number of hours or cases.

Interestingly, there appears to be little relationship between whether fees are assessed and whether the referral to ADR is mandatory or made only with party consent. While some voluntary programs assess a fee and some do not, most of the courts that require participation in ADR also require payment of a fee.

Increasing Formalism and Institutionalization of ADR

With the Civil Justice Reform Act and its encouragement of district-wide examination, ADR has taken on a programmatic character, rather than relying on the initiatives of individual judges as in earlier ADR efforts.14 Evidence for the growing institutionalization of ADR within the courts can be seen in the formal rules and procedures adopted by the courts, which usually apply to the court as a whole and replace the individual judge-based procedures of the past. While generally leaving to the judge's discretion whether ADR should be used in an individual case, the rules spell out the procedures to be followed once a case has been referred. Additionally, a number of courts have developed ADR brochures that are given to parties at filing to alert them to the court's ADR options. A body of judicial decisions about various components of these ADR programs is also emerging.15

Further evidence of ADR's institutionalization is the emergence of specialized staff. Nearly a dozen courts have appointed an ADR administrator or director whose full-time responsibility is to manage and monitor the court's ADR programs. The administrator's duties are often broad and include recruitment and training of the court's neutrals, assistance in identifying cases appropriate for ADR, and ongoing evaluation of program quality. While some courts have created these positions because they have special funding as experimental courts under the CJRA, others support such positions from their general budget. Even when courts have not been able to or have not wanted to fund a full-time, high-level position, many have assigned part-time ADR responsibilities to a member of the clerk's office staff.

ADR Quality and Court Resources

Quality ADR programs require dedicated management and ongoing monitoring, especially in districts where participation in ADR is required or where parties are strongly encouraged to use neutrals from the court's roster only. With the rapid expansion of ADR in the district courts, critical questions arise: Do the courts have the resources and capability to run these programs and ensure the quality of their ADR services? Will the courts' resources be further strained if Congress decides to encourage or require greater use of ADR?16 If courts do not have the resources, should they be in the ADR business at all?

As this sourcebook shows, ADR is a growing presence in the district courts, and questions of how to ensure its quality will only become more urgent. As a matter of policy, the judiciary has spoken in support of a variety of alternatives to litigation and has recognized the importance of well-designed and funded programs.17 Within a year, Congress will presumably consider again whether to continue authorization for the twenty arbitration courts and may consider as part of that authorization whether all courts should offer a variety of ADR methods.18 For those who will initiate and design future ADR programs -- as well as for those who wish to examine and revise existing programs -- we offer this sourcebook as a guide and resource.



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Notes

1. 28 U.S.C. §§ 651-658 authorizes ten courts to require participation in arbitration, hence the designation "mandatory," and ten to offer arbitration, which the parties may use at their option, hence the designation "voluntary" (two courts designated as voluntary arbitration courts have not implemented programs). Mandatory arbitration involves an "automatic" referral process; that is, cases meeting the eligibility requirements, such as case type and dollar amount, are automatically referred to ADR. (See page 7 for a more complete discussion of these referral methods.) The statutory arbitration programs are funded by congressional appropriations.

2. Although the Civil Justice Reform Act of 1990 recommends that courts consider authorizing referral of appropriate cases to ADR (28 U.S.C. § 473(a)(6)), the statute does not include arbitration among the ADR methods it lists, leading some to conclude that arbitration remains limited to those courts authorized by 28 U.S.C. §§ 651-658. See, e.g., Memorandum from William R. Burchill, Jr., general counsel, Administrative Office of the U.S. Courts (AO), to Abel J. Mattos, Court Administration Division, AO (July 5, 1991) (the CJRA does not appear to authorize arbitration in other courts) (on file with the Research Division of the Federal Judicial Center).

3. In 1993, further amendment of Rule 16 altered the language to "use of special procedures to assist in resolving the dispute. "

4. In opt-out procedures, cases eligible for arbitration are automatically referred but then may opt-out of the process with no questions asked. In opt-in programs, cases enter the arbitration process only at the initiative of the parties.

5. The study of the ten pilot and ten comparison districts, being conducted by the Rand Corporation, and the study of the five demonstration districts, being conducted by the Federal Judicial Center, will be reported to Congress by the Judicial Conference of the United States in December 1996.

6. Two mandatory arbitration courts (Western District of Michigan and Western District of Missouri) have decided to make arbitration one of several ADR options offered by the court, and one (Eastern District of North Carolina) has ended its program.

7. Participation rates in three of the four voluntary courts with opt-out procedures are similar to participation rates in courts with presumptively mandatory referral. See David Rauma & Carol Krafka, Voluntary Arbitration in Eight Federal District Courts: An Evaluation (Federal Judicial Center 1994).

8. In many courts, cases involving unrepresented parties are not referred to ADR.

9. The bright line between court rosters and private ADR providers is becoming less clear as increasing numbers of lawyers participating in court ADR programs also provide ADR services in the private sector, either in law firms or as part of ADR provider organizations.

10. A number of courts cite a recent District of Columbia Circuit decision on this question. See Wagshal v. Foster, 28 F.3d 1249 (D.C. Cir. 1994) (granting mediators and neutral evaluators in the District of Columbia Superior Court absolute quasi-judicial immunity when performing their official duties).

11. In a recent decision in the District of Utah, an attorney who had mediated between two parties was disqualified, along with his firm, from representing one of the parties in subsequent litigation involving both. See Poly Software Int'l, Inc. v. Yu Su, 880 F. Supp. 1487 (D. Utah 1995). See also Cho v. Superior Ct. of La.; Cho Hung Bank, Real Party in Interest (95 C.D.O.S. 8237, Oct. 19, 1995) (entire law firm disqualified when retired judge who had conducted mediation-like meetings involving two parties joined law firm representing one of the parties).

12. See District of Utah Manual on Alternative Dispute Resolution for Court-Appointed Arbitrators and Mediators. Section IV contains the Code of Ethics for Court-Appointed Arbitrators and Mediators; Section V contains Information Regarding Court-Appointed Arbitrator and Mediator Liability Issues. The Northern District of Oklahoma is also developing a code of ethics for its neutrals. See also Florida Rules for Certified and Court-Appointed Mediators (adopted by the Florida Supreme Court, May 1992) and Ethical Guidelines for Mediators (adopted by the Alternative Dispute Resolution Section of the State Bar of Texas in 1994).

13. The CPR Institute for Dispute Resolution, in conjunction with the Georgetown University Law Center, is developing ethical guidelines and standards of practice for attorneys in ADR. See also the proposed Joint Standards of Conduct for Mediators drafted by the American Bar Association Section of Dispute Resolution, the American Arbitration Association, and the Society for Professionals in Dispute Resolution.

14. As is true with most of the patterns discussed here, arbitration stands apart. As statutory programs funded from appropriations, these programs have been programmatic and court-wide from their inception.

15. See, e.g., supra notes 10 & 11. See also Cincinnati Gas & Elec. Co. v. General Elec. Co., 854 F. 2d 900 (6th Cir. 1988) (summary jury trial may be ordered closed to the public); GTE Directory Serv. Corp. v. Pacific Bell Directory, 135 F.R.D. 187 (N.D. Cal. 1991) (disclosure of privileged documents for use in an ENE session does not, by itself, waive privilege, as long as the party states its intention to retain the privilege); Kimbrough v. Holiday Inn, 478 F. Supp. 566 (E.D. Pa. 1979) (upholding mandatory arbitration program in one of the ten pilot courts and rejecting Seventh Amendment challenge); Hume v. M & C Management, 129 F.R.D. 506 (N.D. Ohio 1990) (federal courts have no authority to summon citizens to serve as jurors in summary jury trials). And see Strandell v. Jackson County, 838 F.2d 884 (7th Cir. 1988), and In re NLO, Inc., 5 F.3d 154 (6th Cir. 1993) (judge cannot order parties to participate in a summary jury trial); cf. McCay v. Ashland Oil Co., 120 F.R.D. 43 (E.D. Ky. 1988), and Arabian Am. Oil Co. v. Scarfone, 119 F.R.D. 448 (M.D. Fla. 1988).

16. See, e.g., H.R. 1443, 104th Cong. 1st Sess. (1995), the Court Arbitration Authorization Act of 1995, which would require all district courts to offer arbitration. The Judicial Conference has opposed extension of the authority to adopt mandatory court-annexed arbitration beyond the ten currently authorized districts. JCUS Report, March 1993, at 12, and Sept. 1993, at 45.

17. Recommendation 39 of the Long Range Plan for the Federal Courts states, "District courts should be encouraged to make available a variety of alternative dispute resolution techniques, procedures, and resources to assist in achieving a just, speedy, and inexpensive determination of civil litigation." See pp. 70-71 for the recommendation and its supporting language. Judicial Conference of the United States, Long Range Plan for the Federal Courts (December 1995).

18. Pub. L. No. 103-420 extended the arbitration programs through 1997. In hearings on H.R. 1443 (Court Arbitration Authorization Act of 1995), held May 11, 1995, testimony by the Department of Justice suggested the bill be amended to require federal district courts to offer an array of ADR options. See Court Arbitration Authorization Act of 1995: Hearings on H.R. 1443 Before the Subcomm. on Courts and Intellectual Property of the House Committee on the Judiciary, 104th Cong., 1st Sess. 65-67 (1995) (testimony of Paul R. Friedman, deputy associate attorney general, U.S. Department of Justice).