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The Civil Judicial Subsidy, Brendan S. Maher

Faculty Scholarship

American society does not require civil litigants to bear the actual cost of using the court; those costs are borne almost entirely by the taxpayer (i.e., the “civil judicial subsidy”). In this Article I ask: is that right? Or is there a more desirable way to apportion court usage costs between the state and litigants?

I develop an evaluative framework that facilitates analysis of the purpose, contours, and cost of the current judicial subsidy. We subsidize court use because, in theory, there are certain “social positives” associated with public adjudication. To date the unspoken assumption has been that these social …

I Could Have Been A Contender: Summary Jury Trial As A Means To Overcome Iqbal's Negative Effects Upon Pre-Litigation Communication, Negotiation And Early, Consensual Dispute Resolution, Nancy A. Welsh

Faculty Scholarship

With its recent decisions in Ashcroft v. Iqbal and Bell Atlantic v. Twombly, the Supreme Court may be intentionally or unintentionally “throwing the fight,” at least in the legal contests between many civil rights claimants and institutional defendants. The most obvious feared effect is reduction of civil rights claimants’ access to the expressive and coercive power of the courts. Less obviously, the Supreme Court may be effectively undermining institutions’ motivation to negotiate, mediate - or even communicate with and listen to - such claimants before they initiate legal action. Thus, the Supreme Court’s recent decisions have the potential to deprive …

Access Barred: The Effects Of The Cuts And Restructuring Of Legal Aid In B.C. On Women Attempting To Navigate The Provincial Family Court System, Jaime Sarophim

Canadian Journal of Family Law

Self-represented litigants are becoming an epidemic in the B.C. provincial court system. Litigants who lack legal training and knowledge about the formalities of the court often slow and disrupt the justice system. The cuts to legal aid and the Supreme Court of Canada decision in Christie have contributed to this epidemic. The purpose of this paper is to discuss some of the challenges that self-represented litigants pose to the family law justice system. The erosions to legal aid funding and services have had a disproportionately negative effect on women. It has forced women to become self-represented litigants, resulting in women's …

Feeding The Right Wolf: A Niebuhrian Perspective On The Opportunities And Limits Of Mindful Core Concerns Dispute Resolution, Jeffrey W. Stempel

Nevada Law Journal

This Article offers a few observations regarding both the promise and the difficulties faced in using mindful core concerns dispute resolution. Part II focuses on the difficulties faced by mindful negotiators and mediators when confronted with disputants who are too adversarial, selfish, unrealistic, or unresponsive to overtures for interest-based bargaining--even after skilled attempts to neutralize whatever negative emotions may be fueling their counterproductive behavior. In making these assessments and suggestions, the Article relies significantly on the work of Reinhold Niebuhr. Appreciation of Niebuhr's insights can assist mindful negotiation by helping the negotiator to distinguish those situations amenable to the cooperative …

One Judge For One Family: Differentiated Case Management For Families In Continuing Conflict, Nicholas Bala, Rachel Birnbaum, Donna Martinson

Canadian Journal of Family Law

Understanding the differences between family cases and other types of litigation is essential for an appropriate response to family disputes. Judges have a role in family cases that markedly differs from the traditional judicial role. The authors argue that an effective and accessible family justice system requires pre-trial and post-trial case management by a single judge, an approach to family justice reflected in the slogan: "One judge for one family." Judges should have the necessary knowledge, skills, and training needed to resolve family disputes and to help effect changes in parental behaviours and attitudes, as well as the willingness to …

Process, People, Power And Policy: Empirical Studies Of Civil Procedure And Courts, Carrie Menkel-Meadow, Bryant Garth

Georgetown Law Faculty Publications and Other Works

This review essay, by Professor Carrie Menkel-Meadow and Dean Bryant Garth, reports on the history and deployment of empirical studies of civil procedure rules, court policies, and legal developments for reforms of court procedures and practices in both the United States and England and Wales. It traces the influence of particular individuals (e.g., Charles Clark in the United States, and Harry Woolf in England) in the use of empirical studies of litigation patterns and court rules to effectuate legal reforms. The essay reviews some particularly contentious issues over time, such as whether there is/was too much or too little litigation, …

If One Is Good, Two Must Be Better: A Comparison Of The Texas Standards For Appellate Conduct And The Texas Disciplinary Rules Of Professional Conduct., Edward L. Wilkinson

St. Mary's Law Journal

The Supreme Court of Texas and the Texas Court of Criminal Appeals adopted the Standards for Appellate Conduct (Standards) on February 1, 1999. The Standards are intended to “give practitioners a valuable tool to use with clients who demand unprofessional conduct” by imposing “an affirmative duty to educate the client about the Standards of Appellate Conduct.” The Standards further state they do not “alter existing standards of conduct under the Texas Rules of Disciplinary Procedure, or the Code of Judicial Conduct.” Under the Rules of Disciplinary Procedure, sanctionable conduct includes “acts or omissions…which violate one or more of the Texas …