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With zero fanfare, the Supreme Court has issued new guidelines that will bring structure to one of the least-known parts of its caseload: the original jurisdiction cases in which the Court appoints special masters. “Original cases,” assigned to the Court by the Constitution, usually are border disputes between states triggered by shifting river beds, or conflicts over the rights to water that flows through several states. The Supreme Court is the first stop for these cases, so they arrive without a factual record. To accomplish that fact-finding, the Court appoints special masters who hold hearings and make recommendations to the Court — a process that often takes years. The Court used to appoint mainly retired justices and federal judges as special masters, but in recent decades, private practitioners and law professors have been picked. Practitioners and even some special masters themselves have for some time wished that the Court would guide their work with procedural guidelines, if not rules. So the clerk’s office began the project last year and has issued guidelines as prepared by Deputy Clerk Cynthia Rapp. Most of the guidelines are routine, relating to case management issues that arise in this complex and often-contentious type of litigation. One sign of the Court’s embrace of technology is the suggestion that masters create a Web site for the posting of dockets and documents in the case. The guidelines point to a Web site maintained by George Washington University Law School professor Gregory Maggs, the special master in the current case United States v. Alaska. Interestingly, the guidelines drop a hint or two for special masters urging them to move the cases along and not to charge excessive fees. Fees are approved by the Court, but are paid by the parties to the case. Masters have charged from $250 an hour to $450 an hour, and ordinarily the Court will go along if the parties do not object. But the guidelines pointedly note that in 1984, then-Chief Justice Warren Burger objected to the high fees charged by a special master and noted the “public service aspect” of being appointed special master. Former Maine Chief Justice Vincent McKusick, a three-time special master and a scholar of original cases, says the guidelines are “long overdue” and will help new special masters hit the ground running. McKusick, of counsel at the Pierce Atwood firm in Portland, Maine, who consulted with Rapp in the preparation of the guidelines, says that, by issuing guidelines rather than rules, the Court will allow masters to retain flexibility in managing their cases. And McKusick approves of the guideline that hints that masters should not overbill the parties: “Being appointed as special master is not only a public service but a great honor, so they ought not to expect to be paid the same as they might be by a corporate client.”

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