Law Commons^™

Restoring The Civil Jury In A World Without Trials, Dmitry Bam

Faculty Publications

Early in this nation’s history, the civil jury was the most important institutional check on biased and corrupt judges. Recently, concerns about judicial bias, especially in elected state judiciaries, have intensified as new studies demonstrate the extent of that bias. But the jury of Hamilton, Madison, and Jefferson is nowhere to be found. In fact, the civil jury is virtually dead. It is used in less than 1% of all civil cases, and even when it makes a rare appearance, the jury’s powers have been significantly curtailed.

This article argues that we must reimagine the civil jury to match the …

Recusal Failure, Dmitry Bam

Faculty Publications

The American judiciary is suffering from a terrible affliction: biased judges. I am not talking about the subconscious or unconscious biases — stemming from different backgrounds, experiences, ideologies, etc. — that everyone, including judges, harbors. Rather, I am describing invidious, improper biases that lead judges to favor one litigant over another for reasons that almost everyone would agree should play no role in judicial decision-making: the desire to repay a debt of gratitude to those who helped the judge get elected and be reelected.

In this article, I argue that that recusal has failed to prevent biased judges from rendering …

Understanding Caperton: Judicial Disqualification Under The Due Process Clause, Dmitry Bam

Faculty Publications

It is virtually impossible to discuss the Supreme Court’s decision in Caperton v. A.T. Massey Coal Co. without hearing some variant of the following response: “I can’t believe it was as close as it was.” And it does not matter whether you are chatting with your next-door neighbor who had never thought about judicial ethics in his life or discussing the case with a judicial-recusal expert. Nearly everyone seems to agree: Caperton was an “easy” case and that four justices dissented is an indication that there is something terribly wrong. Not only has Caperton elevated the issue of judicial impartiality …