Preface

I came upon this project somewhat accidentally. Looking for a way to accommodate the career of my wife, Susan, I discussed with Judge Joseph T. Sneed ways of spending an additional year in San Francisco after I finished my clerkship with him. Knowing of my interest in legal history, he suggested that I write a proposal to the Ninth Circuit outlining what I thought was a feasible historical study to be undertaken during the year after I completed my judicial clerkship. This book is the result of that proposal. When I say that this book would not have been possible without those two people, then, I am speaking the literal truth!

In my proposal to the Ninth Circuit I suggested exploring the role the court played in western development. Rather than engage in a straightforward institutional study and chart personnel changes in the court, I hoped to examine how the court participated in the development process. I also wanted to feel free to make historical judgments about the court and the judges who served on it. Thus, I insisted on two preconditions from the Ninth Circuit before agreeing to write this book: first, that the court would exercise no control over the substance of the manuscript; and, second, that the study would conclude before the time when any judge now living had been appointed to the court. The present judges who were involved in this project, Chief Judge Clifford Wallace, former Chief Judges James Browning and Alfred Goodwin, and Judges Arthur Alarcon, Warren Ferguson, and Joseph Sneed, readily acceded to these requests, and I owe them a great debt of thanks for their encouragement, support, and faith that my research would finally reach frui-

tion. I make special note of this aspect of the book lest anyone unfairly attribute to the court or individual judges any criticism expressed herein. Judge Sneed was unstintingly generous both as a guide to the court and as a former academic whose own scholarly credentials made him an ideal adviser.

My full-time work on this project was limited because Justice Byron White hired me to serve as one of his law clerks, beginning in August of 1991. In addition to being a phenomenal experience in its own right, the Supreme Court clerkship gave me a different perspective on the federal court system. It also brought me into contact with Justice Sandra Day O'Connor, the circuit justice for the Ninth Circuit. I am very grateful to Justice O'Connor for enthusiastically agreeing to write a foreword for this book, and all the more because she produced it during June, the busiest time of year at the Supreme Court.

Financial support came from several different sources. The Ninth Circuit kept me on the payroll as a law clerk during the eleven months I spent full-time on this book. The Committee on the Bicentennial of the United States Constitution of the Judicial Conference and the Attorney Admission Fund Committee of the Ninth Circuit provided generous grants that I used for research assistance and travel to research sites throughout the country. I am very grateful for this assistance. I also wish it to be known that I renounced any claim to royalties and am not profiting from sales of this book.

In doing the research on this book, I attempted to be as comprehensive in my treatment of relevant materials as possible. I read all the known papers of the judges about whom I have written (and have included in the notes the libraries where the collections may be found); every law review article about the Ninth Circuit or a significant case the court decided that I could find for 1891–1941; and every newspaper article about significant cases that I could locate. I also read a large percentage of the first 10,000 of the court's reported decisions—the Ninth Circuit library kindly lent me a set of Federal Reporters and the early volumes of Federal Reporter , Second Series, for use in my office. This book is, however, a general survey of the court's history over a fifty-year period; researchers interested in a particular topic may find the sources referenced in the Notes useful only as a starting point.

Many individuals helped me in numerous ways during the course of my work on this book and it is a great pleasure to publicly acknowledge my thanks to them. Marcia Fay, Linden Hagans, Elizabeth Harris, Niall

Lynch, Susanna Pollak, Anna Marie Hagans, and Giselle Barth did a tremendous job of research, working diligently and uncovering more material than I ever thought possible in the brief time we had in which to work. The librarians at the Ninth Circuit headquarters were unfailing in their responsiveness to my many research requests, and each deserves special thanks: Helen Hill, Scott McCurdy, Cheryl Blare, Deborah Celle, Eric Wade, Sara Bacon, Sarah Bingham, Patricia Espinoza, Filiberto Govea, Lisa Larribeau, and Konrad Steiner. Librarians at the Bancroft Library at the University of California at Berkeley, the Huntington Library, the San Francisco Public Library, the Hastings Law School Library, the Los Angeles County Law Library, the Green Library at Stanford University, the University of Oregon Library, the Oregon Historical Society, the Alaska State Library, and the University of Alaska Library were extremely helpful, as were archivists at the National Archives in St. Louis and in Washington, D.C. Of the latter, Rod Ross deserves special thanks.

Other Ninth Circuit personnel who were particularly helpful in a variety of ways include Cathy Catterson, Mary Demarais, Rollins Emerson, Ellard Hill, Jim Hochstadt, Ted Peterson, Bob Pleasant, Bill Roberts, Mary Schleier, and Roger Tom. Judge Charles Merrill was kind to lend me Loris Eldredge's secretarial services during my time at the Ninth Circuit. Loris did a superb job, combining efficient skills with a wonderfully sardonic sense of humor. After I left the Ninth Circuit, Sheryl Farmer and Neth Arenas-Butler provided excellent typing assistance. At various stages of the project, I benefited from sound advice on numerous issues that was offered by William Burchill, Francis Gates, Michael Griffith, Craig Joyce, Bruce Mann, Roy Mersky, William Patry, Scot Powe, Rayman Solomon, Lois Weithorn, David Weisskopf, and Charles Alan Wright. Countless members of the Ninth Judicial Circuit Historical Society gave me their support and encouragement (and I owe thanks to Bradley Williams for favors large and small). I also appreciate the Historical Society publishing prior versions of Chapter Two as "Railroads, Robber Barons and the Saving of Stanford University," 4 Western Legal History 225 (1991), and of Chapter Five as "The Ninth Circuit and the Development of Natural Resources in the Early Twentieth Century," 6 Western Legal History (forthcoming Summer/Fall 1993). Finally, Naomi Schneider at the University of California Press was wonderful. I owe her special gratitude for sticking with me during the many months it took me to complete revisions while I was clerking for Justice White. Her

colleague, Jane-Ellen Long, was a highly skilled copy editor. Rose Anne White, William Murphy, and Valeurie Friedman also made my dealings with the Press a real pleasure.

A number of friends read the entire manuscript—often in a very short amount of time—and made countless useful suggestions. It is impossible in this preface to convey the full extent of my thanks to those who spent long hours reading the manuscript in draft form and offering suggestions for making it better: Joe Franaszek, Christian Fritz, Ronald Mann, Maeva Marcus, Nancy Rapoport, and Judge Sneed. Still others, including Chris Eisgruber, Lanny Naegelin, Susan Simmonds, and Michael Sturley, read parts of the manuscript. These readers were immeasurably helpful to me in refining my analysis, challenging assumptions I had made, and broadening my perspective on the Ninth Circuit and the federal courts generally.

My wife Susan was as committed to this project as I was. She spent many hours helping with numerous mundane tasks, from photocopying to inserting data into a spreadsheet program. She also read the manuscript, helped to select the photographs, and served as an indispensable foil whenever I let the inevitable frustrations of a project this large get me down. One evening, as I sat reading over the manuscript for what seemed the umpteenth time, she deadpanned, "Haven't you read that book before?" Were she not put off by the sentimentalism of the gesture, I would dedicate the book to her.

D. C. F.
WASHINGTON, D.C.