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Full-Text Articles in Law
Law, Facts, And Power, Elizabeth Thornburg
Law, Facts, And Power, Elizabeth Thornburg
Beth Thornburg
The Supreme Court’s opinion in Ashcroft v. Iqbal is wrong in many ways. This essay is about only one of them: the Court’s single-handed return to a pleading system that requires lawyers and judges to distinguish between pleading facts and pleading law. This move not only resuscitates a distinction purposely abandoned by the generation that drafted the Federal Rules of Civil Procedure, but also serves as an example of the very difficulties created by the distinction. The chinks in the law-fact divide are evident in Iqbal itself—both in the already notorious pleading section of the opinion, and in the much-less-noted …
The Managerial Judge Goes To Trial, Elizabeth Thornburg
The Managerial Judge Goes To Trial, Elizabeth Thornburg
Beth Thornburg
Scholars have examined the phenomenon of pre-trial judicial management, but have ignored the ways in which this problematic set of attitudes has invaded the trial phase of litigation. This article examines the use of managerial discretion at the trial stage and demonstrates that trial-phase managerial decisions suffer from all the problems of their pre-trial counterparts: 1) trial management involves judges so intimately in the parties’ information and strategies that it may compromise the judges’ impartiality; 2) it leads to a loss of transparency as more decisions are made off the record or in chambers; 3) management decisions are not guided …
Judicial Hellholes, Lawsuit Climates, And Bad Social Science: Lessons From West Virginia, Elizabeth Thornburg
Judicial Hellholes, Lawsuit Climates, And Bad Social Science: Lessons From West Virginia, Elizabeth Thornburg
Beth Thornburg
The American Tort Reform Association (ATRA) was founded in 1986 by the American Medical Association and American Council of Engineering Companies, and now has hundreds of corporate members. Every year, ATRA releases a list of Judicial Hellholes: court systems alleged to be unfair to defendants. The name is definitely catchy: the thought of a judicial hellhole invokes images of Kafka, Satan and the Queen of Hearts. No wonder ATRA's hellhole campaign has embedded itself in media vocabulary. And no wonder state courts and state legislatures bend over backwards to get out from under the hellhole label. Similarly, the U.S. Chamber …
The Curious Appellate Judge: Ethical Limits On Independent Research, Beth Thornburg
The Curious Appellate Judge: Ethical Limits On Independent Research, Beth Thornburg
Beth Thornburg
Appellate judges in the twenty-first century find themselves in a world in which litigation – both civil and criminal -- involves a vast array of complex and technical factual disputes. These lawsuits, in turn, may cause judges to seek a greater level of expertise in order to deal competently with the evidence that will be relevant to the disputes. At the same time, advances in communication technology have brought the world’s library to the courthouse, requiring no onerous trips across town or index searches but only the click of a mouse. When judges feel the need for additional information, the …