[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
Long ago, when my wife, Patricia, and I were looking for a house, we abandoned the term “master bedroom” in favor of “main bedroom.”
Bloomberg Law reports that:
The American Bar Association is asking the federal judiciary to follow states’ lead and stop using the term “court-appointed master,” citing accuracy and negative associations with slavery.
The ABA made the changes with an August 2023 resolution, replacing the terms “master” and “special master” to “court-appointed neutral.”
“Calling someone ‘master’ suggests that their role is to make decisions or recommendations to the court,” the ABA said in a Feb. 12 letter to the Administrative Office of the US Courts. Court-appointed neutral is a “much more accurate term,” the group said.
The term also carries negative associations with slavery, according to the ABA letter. “It refers to one (male) person who has control or authority over another; and the most obvious example of that is slavery,” the ABA said.
Tatyana Monnay, ‘Master’ Term Use Should End, as ABA Cites Accuracy, Slavery (1) (bloomberglaw.com)(Feb. 14, 2024); see also Debra C. Weiss, ABA asks federal judiciary to drop term ‘court-appointed master,’ citing negative connotations (abajournal.com)(Feb. 14, 2024); Karen Sloan and Dietrich Knauth, US judiciary’s ‘master’ moniker needs replacing, American Bar Association says | Reuters (Feb. 13, 2024); Maria Lenin Laus, American Bar Association Proposes Terminology Change in Federal Judiciary | JDJournal (Feb. 14, 2024).
Ms. Monnay reports that: “The Advisory Committee on Civil Rules may consider the language change request when it meets on April 9 in Colorado.” Ms. Laus wrote that: “Through these recommendations, the ABA seeks to modernize legal terminology and practices, ensuring alignment with evolving societal norms and enhancing the efficacy of legal proceedings.”
In recent years, many organizations, in many contexts, have been considering whether they should use a different term – especially in situations that describe arguable control over others or invoke images of dominance and subservience.
ABA’s February 12, 2024, letter to the Committee on Rules of Practice and Procedure, emphasis added.
Currently, Fed.R.Civ.P. 53 is titled as “Masters.” It provides that “a court may appoint a master” for purposes set out in the Rule. The Advisory Committee Notes refer to a 1937 adoption of that term based on former Equity Rules. One of those Rules was titled, in part, “Reference to Master….” The 1983 amendments specifically state that the term “special master” is retained in Rule 53 for purposes of conformity with 28 U.S.C. §636(b)(2).
The ABA’s February 12, 2024, letter to the Committee on Rules of Practice and Procedure suggests amendment of the Federal Rules of Civil Procedure. The ABA wrote:
The term “master” has both positive and negative connotations. It can refer to admirable qualities, like expertise, proficiency, accomplishment, scholarship, or leadership to which others can aspire and usually obtained through years of effort. In the context of calling someone a “chess master” or a “master of the art” it does convey one of those meanings.
The situation, however, is very different when “master” is used to identify people invested by a court with some measure of authority over parties. Although no one suggests that the use of “master” in court settings was intended to have a negative meaning, “master” carries an extremely negative connotation in situations involving power relationships. It refers to one (male) person who has control or authority over another; and the most obvious example of that is slavery.
In recent years, many organizations, in many contexts, have been considering whether they should use a different term – especially in situations that describe arguable control over others or invoke images of dominance and subservience. For example, electrical and software engineers are discussing whether they should continue (as they have for decades) to use master and slave to refer to situations in which one device exercises asymmetric control over others. Colleges, including Harvard, Yale, and Rice have stopped using “master” as an academic title or the name for the head of a residential college. Many real estate professionals have decided that “master” bedroom is not the best name. The wine industry is debating whether to delete the term “master” from “master sommelier.”
By supporting “rule and legislative changes designed to replace the term “master” or “special master” with “court-appointed neutral,” in ABA Resolution 516, and using the term “court appointed neutrals” in Resolution 517 for a model state, local, tribal, and territorial rule, the ABA joined in an active effort already underway to change the term used by many courts. At least three states – Maryland, Delaware and Pennsylvania – have changed court rules in recent years to substitute a different term for “masters.” In Pennsylvania’s case, the move followed a resolution of the Philadelphia Bar Association that raised a number of concerns about appointing someone called a “master.” The resolution noted that the term “creates a sense of separation, anxiety, and confusion” because it suggests that some people are subject to others.” [emphasis added; footnotes omitted].
ABA’s February 12, 2024, letter to the Committee on Rules of Practice and Procedure.
ABA Resolution 516 (Aug. 7-8, 2023), was adopted by the House of Delegates. It amends several ABA Guidelines and also supports “rule and legislative changes….”
Of course, court-appointed neutrals include “masters,” arbitrators, and mediators, and care must be taken to differentiate the nature of an appointment. The ABA Resolution recognizes the “broad array of functions” that neutrals may perform. It states that: “The referral order appointing the court-appointed neutral should describe the scope of the engagement, including, but not limited to, the court-appointed neutral’s duties and powers, [and] the roles the court appointed neutral may serve….”
The ABA Resolution suggests that: “Courts and, where applicable, legislatures should make whatever modifications to laws, rules, or practices that are necessary to effectuate these ends.”
ABA Resolution 517 suggests a Model Rule on the use of Court-Appointed Neutrals and defines the term. “A Court-Appointed Neutral is a disinterested professional appointed as an adjunct special officer appointment to assist a court in its case-management, adjudicative or post-resolution responsibilities in accordance with the provisions of this Rule and any standards established by this Court for qualification to hold such an appointment. ”As the ABA pointed out, in 2015, Maryland changed “Masters” to “Magistrates.” See New Rule Changes “Masters” to “Magistrates” | Maryland Courts (state.md.us)
