Law Commons^™

Resolving Cases On The Merits, Jay Tidmarsh

Jay Tidmarsh

Prepared for a Symposium on Civil Justice Reform, this essay examines the role of the “on the merits” principle in modern American procedure. After surveying the possible meanings of the phrase, the essay critiques its most common understanding due to its economic inefficiency and its lack of strong philosophical support. Relying on the recent work of Amartya Sen, the essay proposes that the principle be replaced with a “fair outcome” principle that melds both “procedural” and “substantive” concerns.

Litigation Reform: An Institutional Approach, Stephen B. Burbank, Sean Farhang

Sean Farhang

The program of regulation through private litigation that Democratic Congresses purposefully created starting in the late 1960s soon met opposition emanating primarily from the Republican party. In the long campaign for retrenchment that began in the Reagan administration, consequential reform proved difficult and ultimately failed in Congress. Litigation reformers turned to the courts and, in marked contrast to their legislative failure, were well-rewarded, achieving growing rates of voting support from an increasingly conservative Supreme Court on issues curtailing private enforcement under individual statutes. We also demonstrate that the judiciary’s control of procedure has been central to the campaign to retrench …

Resurrecting Trial By Statistics, Jay Tidmarsh

Jay Tidmarsh

“Trial by statistics” was a means by which a court could resolve a large number of aggregated claims: a court could try a random sample of claim, and extrapolate the average result to the remainder. In Wal-Mart, Inc. v. Dukes, the Supreme Court seemingly ended the practice at the federal level, thus removing from judges a tool that made mass aggregation more feasible. After examining the benefits and drawbacks of trial by statistics, this Article suggests an alternative that harnesses many of the positive features of the technique while avoiding its major difficulties. The technique is the “presumptive judgment”: a …

Occam's Phaser: Making Proportional Discovery (Finally) Work In Litigation By Requiring Phased Discovery, Michael Thomas Murphy

All Faculty Scholarship

This is an article about solving the problem of expensive electronic discovery in litigation by simply learning the most important facts first. Judges and parties often complain that the scope of information included in fact discovery in civil litigation is overinclusive and disproportionate to size of the dispute, resulting in overly expensive costs. The Federal Rules of Civil Procedure recently changed again to further emphasize the use of “proportional” limits in discovery, but provide little practical mechanism for parties, lawyers, and judges to make discovery “right-sized.” This Article proposes that parties should be required to “phase” discovery by first setting …

Procedure And Pragmatism, Stephen B. Burbank

All Faculty Scholarship

In this essay, prepared as part of a festschrift for the Italian scholar, Michele Taruffo, I portray him as a pragmatic realist of the sort described by Richard Posner in his book, Reflections on Judging. Viewing him as such, I salute Taruffo for challenging the established order in domestic and comparative law thinking about civil law systems, the role of lawyers, courts and precedent in those systems, and also for casting the light of the comparative enterprise on common law systems, particularly that in the United States. Speaking as one iconoclast of another, however, I also raise questions about Taruffo’s …

Measuring Older Adult Confidence In The Courts And Law Enforcement, Joseph A. Hamm, Lindsey E. Wylie, Eve M. Brank

Department of Psychology: Faculty Publications

Older adults are an increasingly relevant subpopulation for criminal justice policy but, as yet, are largely neglected in the relevant research. The current research addresses this by reporting on a psychometric evaluation of a measure of older adults’ Confidence in Legal Institutions (CLI). Confirmatory factor analysis (CFA) provided support for the unidimensionality and reliability of the measures. In addition, participants’ CLI was related to cynicism, trust in government, dispositional trust, age, and education, but not income or gender. The results provide support for the measures of confidence in the courts and law enforcement, so we present the scale as a …

Neutralizing The Stratagem Of “Snap Removal”: A Proposed Amendment To The Judicial Code, Arthur Hellman, Lonny Hoffman, Thomas D. Rowe Jr., Joan Steinman, Georgene Vairo

Faculty Scholarship

The “Removal Jurisdiction Clarification Act” is a narrowly tailored legislative proposal designed to resolve a widespread conflict in the federal district courts over the proper interpretation of the statutory “forum-defendant” rule.

The forum-defendant rule prohibits removal of a diversity case “if any of the parties in interest properly joined and served as defendants is a citizen of the [forum state].” 28 U.S.C. § 1441(b)(2) (emphasis added). Some courts, following the “plain language” of the statute, hold that defendants can avoid the constraints of the rule by removing diversity cases to federal court when a citizen of the forum state has …

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 …