Law Commons^™

Train Our Jurors, Jonathan Koehler

Faculty Working Papers

Lay jurors are often legally and logically unprepared for trial. In response, it is recommended that jurors receive training in how to make better legal decisions. This chapter suggests that jurors should receive comprehensive training in critical legal doctrines and in how to reason with legal evidence. Jurors who cannot be trained to achieve minimal levels of competence (in the law or in basic reasoning) should be excused from jury service. Suggestions are given as to how policy makers and researchers who are interested in jury reform may wish to proceed.

Introduction To Vanishing Trial Symposium, John M. Lande

Faculty Publications

This symposium shows that "vanishing trial" phenomena touch an extremely broad range of issues including transformations of society, courts, dispute resolution procedures, and even the nature of knowledge. These phenomena relate to decisions by litigants in particular cases, court systems, national policy, and international relations. This subject is too large and complex for any symposium to analyze fully, especially at this early stage of analysis. This symposium makes an important contribution to this study, with theories and evidence about the existence, nature, and extent of reductions in trials and similar proceedings. It elaborates a range of theories about possible causes …

How Much Justice Can We Afford?: Defining The Courts' Roles And Deciding The Appropriate Number Of Trials, Settlement Signals, And Other Elements Needed To Administer Justice, John M. Lande

Faculty Publications

This article discusses how the U.S. court system can function optimally given declining trial rates and the limited resources available. The question of how much justice we can afford is a challenge that becomes more difficult as budgets fall behind the increasing demand for and cost of court services. Presumably most analysts would agree that courts should try cases when appropriate - and help litigants find just resolutions without trial when it is not needed. The courts' ability to provide trials in some cases is possible only if the vast majority of other cases are not tried.This article provides background …

Shifting The Focus From The Myth Of "The Vanishing Trial" To Complex Conflict Management Systems, Or I Learned Almost Everything I Need To Know About Conflict Resolution From Marc Galanter, John M. Lande

Faculty Publications

To say that The Vanishing Trial is a myth is not to suggest that the facts or analysis in Professor Marc Galanter's seminal report on the vanishing trial are fictional or inaccurate. Indeed, he marshals a massive amount of data to show that the number of trials and the trial rates have been declining for the past four decades, particularly in the federal courts. The report documents an apparent paradox: the proportion of cases going to trial has dropped sharply during the past forty years despite substantial increases in many other legal indicators including the number of lawyers, the number …

Will Employment Discrimination Class Actions Survive?, Melissa Hart

Publications

Recent years have witnessed increasing attacks on the appropriateness of certification of employment discrimination class action claims. The shift is often attributed to amendments to federal antidiscrimination laws in the Civil Rights Act of 1991. This paper argues, however, that the changes wrought by the 1991 amendments need not pose a barrier to resolution of employment discrimination claims through class litigation. The addition of compensatory and punitive damages and a jury-trial right may increase the level of scrutiny and perhaps the level of judicial involvement necessary in an employment discrimination class action. But they do not render such a class …

Valuation Averaging: A New Procedure For Resolving Valuation Disputes, Keith Sharfman

Rutgers Law School (Newark) Faculty Papers

In this Article, Professor Sharfman addresses the problem of "discretionary valuation": that courts resolve valuation disputes arbitrarily and unpredictably, thus harming litigants and society. As a solution, he proposes the enactment of "valuation averaging," a new procedure for resolving valuation disputes modeled on the algorithmic valuation processes often agreed to by sophisticated private firms in advance of any dispute. He argues that by replacing the discretion of judges and juries with a mechanical valuation process, valuation averaging would cause litigants to introduce more plausible and conciliatory valuations into evidence and thereby reduce the cost of valuation litigation and increase the …

Race And The Georgia Courts: Implications Of The Georgia Public Trust And Confidence Survey For Batson V. Kentucky And Its Progeny, George W. Dougherty, Randy Beck, Mark D. Bradbury

Scholarly Works

Put simply, there is a perception among many Georgians that the court system treats minorities worse than whites. This Essay considers implications of the Georgia findings for a line of United States Supreme Court decisions designed to prevent racial discrimination by trial lawyers in the selection of trial juries.

Civil Litigation From Litigants' Perspectives: What We Know And What We Don't Know About The Litigation Experience Of Individual Litigants, Tamara Relis

Scholarly Works

This study of the entire phenomenon of civil litigation commenced with the sole aim of ascertaining the extant gaps in the available knowledge about litigation from the perspectives of those who are by far affected most by it: the litigants. What does litigation mean for those who are directly embroiled and whose lives may consequently be radically transformed? Serious lacunas exist. However, extensive readings worldwide throughout the research process result in a stark elucidation of an overlooked, yet crucially important and somewhat egregious state of affairs, making surprisingly clear just how pernicious litigation is for the average 'nonrepeat player'.

Lawyers On The Auction Block: Evaluation And Selection Of Class Counsel By Auction, Jill E. Fisch

All Faculty Scholarship

The lead counsel auction has attracted increasing attention. Auction advocates argue that auctions introduce competitive market forces that improve the selection and compensation of class counsel. The benefits of the auction, the;' claim, include lower legal fees and better representation. Careful scrutiny reveals that auction advocates have overlooked substantial methodological problems with the design and implementation of the lead counsel auction. Even if these problems were overcome, the auction procedure is flawed: Auctions are poor tools for selecting firms based on multiple criteria, compromise the judicial role, and are unlikely to produce reasonable fee awards. Although the existing record is …

Semtek, Forum Shopping, And Federal Common Law, Stephen B. Burbank

All Faculty Scholarship

No abstract provided.

Naked Politics, Federal Courts Law, And The Canon Of Acceptable Arguments, Michael Wells

Scholarly Works

In this Article, I argue that there is a wide gap between the aspirations and the actual operation of Federal Courts law. I maintain that, despite the conversational rule forbidding it, raw substance in fact wields significant influence in the resolution of Federal Courts issues. For example, the familiar argument that federal courts should be favored because they are more "sympathetic" to federal claims is really an appeal to naked politics. The empirical premise of this and other arguments of naked politics is that there are structural differences between federal and state courts which affect the outcomes of close cases, …

Sustainable Use Of Natural Resources: A Native American Perspective, Ted Strong

Sustainable Use of the West's Water (Summer Conference, June 12-14)

27 pages.

Contains footnotes.

What's Quality Got To Do With It?: Constitutional Theory, Politics, And Education Reform, Phil Weiser

Publications

No abstract provided.

Agenda: Regulatory Takings And Resources: What Are The Constitutional Limits?, University Of Colorado Boulder. Natural Resources Law Center, Byron R. White Center For The Study Of American Constitutional Law

Regulatory Takings and Resources: What Are the Constitutional Limits? (Summer Conference, June 13-15)

Sponsored by the University of Colorado's Natural Resources Law Center and the Byron R. White Center for American Constitutional Study.

Conference organizers, faculty and/or moderators included University of Colorado School of Law professors David H. Getches, Lawrence J. MacDonnell, Gene R. Nichol, Jr. and Mark Squillace.

Governmental regulation for environmental protection and other important public purposes can affect the manner in which land and natural resources are developed and used. The U.S. constitution (and most state constitutions) prohibit the government from "taking" property without payment of compensation. Originally intended to apply to situations where the government physically seized private property …

The Rehnquist Court, Statutory Interpretation, Inertial Burdens, And A Misleading Version Of Democracy, Jeffrey W. Stempel

Scholarly Works

No one theory or school of thought consistently dominates judicial application of statutes, but the basic methodology employed by courts seems well-established if not always well-defined. Most mainstream judges and lawyers faced with a statutory construction task will look at (although with varying emphasis) the text of the statute, the legislative history of the provision, the context of the enactment, evident congressional purpose, and applicable agency interpretations, often employing the canons of construction for assistance. Although orthodox judicial thought suggests that the judge's role is confined to discerning textual meaning or directives of the enacting legislature, courts also often examine …

Afterword: Studying Litigation And Social Change, Frank W. Munger

Articles & Chapters

No abstract provided.

Urban Air Quality Litigation Under The Clean Air Act: Past, Present And Future, David S. Baron

Air Quality Protection in the West (November 27-28)

20 pages.

Contains footnotes.

Agenda: Air Quality Protection In The West, University Of Colorado Boulder. Natural Resources Law Center

Air Quality Protection in the West (November 27-28)

Conference organizers, session moderators and/or speakers included University of Colorado School of Law professor Mark S. Squillace.

Visibility, acid rain, air toxics, and urban air pollution are the topics of an upcoming Center conference on air quality in the West. The conference will be held at the School of Law in Boulder on November 27-28, 1989. Presentations will describe the nature and scope of the issues, the existing legal framework and experience with its implementation, and proposed changes in the law. Emphasis will be placed on air quality issues in the West and efforts underway to address these problems. Special …

Agenda: Boundaries And Water: Allocation And Use Of A Shared Resource, University Of Colorado Boulder. Natural Resources Law Center

Boundaries and Water: Allocation and Use of a Shared Resource (Summer Conference, June 5-7)

Conference organizers and/or faculty included University of Colorado School of Law professors David H. Getches, Lawrence J. MacDonnell and Charles F. Wilkinson.

Boundaries and Water: Allocation and Use of a Shared Resource is the topic of the Center's annual summer program on water this June. Most of the major rivers in the western United States are shared between two or more states. Often tribal governments play an important role in water allocation and use decisions. International considerations also may be involved in some cases. These interjurisdictional issues extend to groundwater as well as surface water.

This conference will provide the …

The Impact Of Substantive Interests On The Law Of Federal Courts, Michael L. Wells

Scholarly Works

The thesis of this Article is that substantive factors exert a powerful and often unrecognized influence over the resolution of jurisdictional issues, and have done so throughout our history. The chief substantive factors at issue are the government's interest iin regulating behavior on the one hand, and the individual's interest in enforcing constitutional restraints upon government on the other. Part I of this Article examines the relationship between jurisdictional rules and substantive consequences, Part II describes the Court's conventional account of federal courts doctrine in terms of jurisdictional policy and institutional roles, and Part III shows that the reasons set …

A Distorted Mirror: The Supreme Court's Shimmering View Of Summary Judgment, Directed Verdict, And The Value Of Adjudication, Jeffrey W. Stempel

Scholarly Works

As almost anyone alive during the past decade knows, this is the era of the ‘litigation explosion,’ or there is at least the perception that a litigation explosion exists. Although all agree that the absolute number of lawsuits has increased in virtually every corner of the state and federal court systems, there exists vigorous debate about whether the increase is unusual in relative or historical terms and even more vigorous debate about whether the absolute increase in cases symbolizes the American concern for fairness and justice or represents a surge in frivolous or trivial disputes needlessly clogging the courts. As …

Child Custody - Jurisdiction And Procedure, Christopher L. Blakesley

Scholarly Works

Custody determinations traditionally have comprised a subcategory of litigation under the Pennoyer v. Neff exception for proceedings relating to status. Of course, states have the power to decide the status of their domiciliaries. It was natural, therefore, for the courts and scholars of the nineteenth and early twentieth centuries to consider domicile the sole basis of jurisdiction in custody matters. Gradually, judges and scholars began to challenge the notion that domicile was the sole basis and courts began to apply other bases, such as the child's presence in the state or personal jurisdiction over both parents. One commentator suggests that …

Transboundary Groundwater Law: Focus On The U.S.-Mexico Boundary [Includes Appended Opinion In City Of El Paso Ex Rel. Pub. Serv. Bd. V. Reynolds, Civ. No. 80-730 Hb, 563 F. Supp. 279 (D.N.M. 1983)], Albert E. Utton

Groundwater: Allocation, Development and Pollution (Summer Conference, June 6-9)

48 pages.

Legal Advocacy, Performance, And Affection, D. Robert Lohn, Milner S. Ball

Scholarly Works

Professor Geoffrey Hazard's lecture addresses appellate advocacy. That advocate's brief is best, he says, that, short of surrender, concedes most to the opposing party. We assume that Professor Hazard would scarcely have ventured out of New Haven to participate in the distinguished Sibley Lectureship merely to commend to the consideration of the audience an interesting but minor rhetorical ploy. Therefore we read his comments as surely implying more. We interpret his lecture as an invitation to rethink the nature of the courtroom event. The textual openings to our examination of fundamentals are found in various of Professor Hazard's comments--for instance, …

Quantification Of Federal Reserved Rights—Litigation, Legislation Or Negotiation? [Outline], John Undem Carlson

Water Resources Allocation: Laws and Emerging Issues: A Short Course (Summer Conference, June 8-11)

1 page.

Evaluating Article 2 Of The Uniform Commercial Code: A Preliminary Empirical Expedition, James J. White

Articles

A proponent of commercial law codification, Mr. Eaton was one of the first American lawyers to perceive that mere codification of the law did not necessarily produce certainty and lack of discord in the law of commercial transactions. Indeed, in the same article Eaton reveals that of the 1,091 cases that had arisen under the Negotiable Instruments Law, only 704 cited the Act and in the other 387 "the Negotiable Instruments Law [was] ignored by the courts in the decisions, and (so far as the reports show) by the counsel in these cases...." Unlike Bentham, Carter, and Field, each of …