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Full-Text Articles in Law
A Modest Proposal: Recognizing (At Last) That The Federal Rules Do Not Declare That Discovery Is Presumptively Public, Richard L. Marcus
A Modest Proposal: Recognizing (At Last) That The Federal Rules Do Not Declare That Discovery Is Presumptively Public, Richard L. Marcus
Chicago-Kent Law Review
The adoption of the Federal Rules of Civil Procedure worked a revolution in American litigation by introducing broad party-controlled discovery. The framers of those Rules intended broad discovery to facilitate decisions on the merits, and their revolution served as a catalyst for many types of claims in American courts. American discovery also became anathema in the rest of the world, which saw it as too great a cost to pay for better or more accurate litigation results. As American discovery hit full stride in the 1970s, nonparties began to argue that the Federal Rules made all material turned over in …
Uncovering, Disclosing, And Discovering How The Public Dimensions Of Court-Based Processes Are At Risk, Judith Resnik
Uncovering, Disclosing, And Discovering How The Public Dimensions Of Court-Based Processes Are At Risk, Judith Resnik
Chicago-Kent Law Review
In this essay—considering "privacy" and "secrecy" in courts—I first offer a brief history of the public performance, through adjudication, of the power of rulers, who relied on open rituals of judgment and punishment to make and maintain law and order. Second, I turn to consider why, during the twentieth century, the federal courts became an unusually good source of information about legal, political, and social conflict. Third, I map how, despite new information technologies, knowledge about conflicts and their resolution is being limited by the devolution of court authority to agencies, by the outsourcing of decisions to private providers, and …
Secrecy In Context: The Shadowy Life Of Civil Rights Litigation, Minna J. Kotkin
Secrecy In Context: The Shadowy Life Of Civil Rights Litigation, Minna J. Kotkin
Chicago-Kent Law Review
This article explores how secrecy has come to pervade employment discrimination litigation as a consequence of procedural and substantive changes in the law over the last twenty-five years. In contrast to products liability and toxic tort claims, where secrecy can endanger the public health and safety, secrecy in the discrimination context has a less dramatic impact and thus, has attracted little attention. But when very few discrimination claims end in a public finding of liability, there is a significant cumulative effect, creating the appearance that workplace bias is largely a thing of the past. The trend towards secrecy can be …
Introduction To Secrecy In Litigation, Nancy S. Marder
Introduction To Secrecy In Litigation, Nancy S. Marder
Chicago-Kent Law Review
The clash between privacy and public disclosure in dispute resolution demands the attention of legal academics, empiricists, and practitioners. Recent advances in technology have made information accessible in ways that were inconceivable a few years ago. Parties to disputes find their thoughts and interactions open to far greater disclosure than ever before. At the same time, the move toward alternative dispute resolution (ADR) has effectively taken many disputes out of the public realm and has transformed them into private transactions. Whereas in the past the public could observe disputes resolved at trial, now many disputes are resolved behind the veil …
Court-Ordered Confidentiality In Discovery, Howard M. Erichson
Court-Ordered Confidentiality In Discovery, Howard M. Erichson
Chicago-Kent Law Review
This Article offers support for the argument that protective orders for discovery confidentiality should be granted upon a relatively light showing of good cause. Part I offers reasons why, in the vast majority of cases, courts should readily grant motions for protective orders with respect to discovery confidentiality as long as the movant can articulate some legitimate need for the information to be kept confidential. Looking at modern United States discovery from a comparative and historical perspective, broad and powerful party-controlled discovery can only be justified as a means of finding information for the resolution of the dispute, not as …
Public Courts Versus Private Justice: It's Time To Let Some Sun Shine In On Alternative Dispute Resolution, Laurie Kratky Dore
Public Courts Versus Private Justice: It's Time To Let Some Sun Shine In On Alternative Dispute Resolution, Laurie Kratky Dore
Chicago-Kent Law Review
In her article, Public Courts versus Private Justice: It's Time to Let Some Sun Shine in on Alternative Dispute Resolution, Professor Laurie Doré explores the divergent attitudes toward confidentiality in litigation and confidentiality in alternative dispute resolution. In adjudicating even seemingly private disputes, a court balances the legitimate need for confidentiality against any countervailing public interest in disclosure. A strong presumption of public access attaches to judicial records and proceedings and good cause must support any protective, sealing, or confidentiality order of a court. Today, however, an increasing number of disputes that would otherwise be litigated before a judge …