Judges Commons^™

Trump V. Mazars Usa, Llp: The Case Of The Chief Justice And The Congressional Subpoenas, Rodger D. Citron

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No abstract provided.

The Difficulty Of Discerning The Effect Of Neuroscience: A Peer Commentary Of Shen Et Al. 2018, John B. Meixner Jr.

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Neuroscience is often considered to have a certain ‘seductive allure’.1 Its mystique should not besurprising. Seeking to understand the network of nearly 100 billion neurons that make up the human brain, neuroscience examines some of the most difficult questions imaginable. And yet, it is also a deeply personal discipline—questions like, ‘How do we create memories?’ and ‘What causes emotions?’ touch on experiences shared by all people.

Does the mystique of neuroscience cause individuals to ascribe undue weight to neuroscientific findings, or assume that neuroimages indicate research quality? Over the past decade, a literature has sprung up seeking to answer questions …

Civility And Collegiality—Unreasonable Judicial Expectations For Lawyers As Officers Of The Court?, Lonnie T. Brown

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It is a well-settled and often-recited fact that lawyers are “officers of the court.” That title, however, is notoriously hortatory and devoid of meaning. Nevertheless, the Eleventh Circuit recently took the somewhat unprecedented step of utilizing the officer-of-the-court label to, in effect, sanction an attorney for the purportedly uncivil act of failing to provide defendant attorneys with pre-suit notice. While the author applauds the court’s desire to place greater emphasis on lawyer-to-lawyer collegiality as a component of officer-of-the-court status, the uncertainty the decision creates in terms of a lawyer’s role will potentially force litigators to compromise important client-centered duties. This …

A Democratic Theory Of Amicus Advocacy, Ruben J. Garcia

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Amicus curiae ("friend of the court”) participation in litigation has flourished in recent years as many groups and individuals seek to influence the outcome of litigation. Amicus filers are not parties and judges have wide discretion to reject amicus briefs if they believe that the amicus participation does not add anything to the briefs already filed by the parties. In three recent cases, Seventh Circuit Court of Appeals Judge Richard Posner has rejected amicus filings and promised to closely scrutinize applications to file amicus briefs in the future. Judge Posner's influence has led an increasing number of judges, primarily at …

Lawyer Professional Responsibility In Litigation, Jeffrey W. Stempel

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A perennially-vexing litigation issue concerns the limits of permissible attorney argument. More than a few lawyers have been tripped up by the occasional fuzziness of the line between aggressive advocacy and improper appeals to passion or prejudice. See Craig Lee Montz, Why Lawyers Continue to Cross the Line in Closing Argument: An Examination of Federal and State Cases, 28 Ohio N.U. L. Rev. 67 (2001-2002)(problem of violations results from lack of uniformity and clarity of ground rules as well as errors of counsel). In Cohen v. Lioce, 149 P.3d 916 (Nev. 2006) the Nevada Supreme Court both provided significant guidance …

Judge-Made Insurance That Was Not On The Menu: Schmidt V. Smith And The Confluence Of Text, Expectation, And Public Policy In The Realm Of Employment Practices Liability, Jeffrey W. Stempel

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In Schmidt v. Smith, the New Jersey Supreme Court caught more than a few observers by surprise. New Jersey courts have generally issued opinions regarded as pro-claimant and pro-policyholders. But everyone's taste for recompense and coverage has limits. In Schmidt, the court exceeded those limits for many observers by holding that despite what it regarded as clear contract language in an exclusion, an insurer providing Employers’ Liability (“EL”) coverage along with Workers' Compensation (“WC”) insurance for the employer was required to provide coverage in a case of blatant sexual harassment bordering on criminal assault. In doing so, the Schmidt court, …

A More Complete Look At Complexity, Jeffrey W. Stempel

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The ability of courts to successfully resolve complex cases has been a matter of contentious debate, not only for the last quarter-century, but for most of the twentieth century. This debate has been part of the legal landscape at least since Judge Jerome Frank's polemic book from which this Symposium derives its title, and probably since Roscoe Pound's famous address to the American Bar Association. During the 1980s and 1990s in particular, the battlelines of the pro-and anti-court debate have been brightly drawn. Some commentators, most reliably successful plaintiffs' counsel and politically liberal academics, defend the judicial track record in …

Scientific Testing & Proof Of Paternity: Some Controversy And Key Issues For Family Law Counsel, Christopher L. Blakesley

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Blood and tissue testing, especially DNA matching, have become important elements of both criminal and paternity or maternity litigation. Such scientific testing has become so important that it has taken on aspects that may cause it to benefit or to do harm to the judicial process or to any given case. This article focuses on the value and the dangers surrounding this interesting subject.

The 1995 Louisiana Supreme Court decision in Pace v. State reemphasized the importance of DNA testing generally and the significance of blood and tissue genetic testing used to exclude paternity. The advances in and importance of …

Reflections Of Judicial Adr And The Multi-Door Courthouse At Twenty: Fait Accompli, Failed Overture, Or Fledgling Adulthood, Jeffrey W. Stempel

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Like any trend, ADR has its skeptics and even some opponents. Considerable debate exists regarding the degree to which the increasing ADRization of traditionally judicial activity amounts to triumph or tragedy, a point well-illustrated by the past Schwartz Lectures. In the 1993 Schwartz Lecture, Professor Laura Nader described the ADR movement as a byproduct of society's attempt to suppress or conceal uncomfortable conflicts. In the 1994 Lecture, Professor Judith Resnik essentially concluded that the modern ADR movement has brought a regrettable de facto closing of the court house (or at least raised barriers to entry) and replaced reflective decision-making about …

Halting Devolution Or Bleak To The Future? Subrin's New-Old Procedure As A Possible Antidote To Dreyfuss's "Tolstoy Problem", Jeffrey W. Stempel

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Professors Rochelle Dreyfuss and Stephen Subrin first presented their ideas on the 1993 Amendments to the Federal Rules of Civil Procedure (Civil Rules) at the 1994 Annual Meeting of the Association of American Law Schools (AALS) in a program titled, “The 1993 Discovery Amendments: Evolution, Revolution, or Devolution?” After the program, I was left with the depressing view that the answer was devolution, which is defined as a “retrograde evolution,” or “degeneration.” Dreyfuss provides a detailed but succinct review of the changes in discovery occasioned by the new rules as well as a vantage point for assessing the social and …

The Georgia Jury And Negligence: The View From The Trenches, R. Perry Sentell Jr.

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This is the third part of a project devoted to analyzing the Georgia negligence jury. The project employed as its original point of departure the extensive Chicago Jury Study of the 1960s, directed by Chicago Law Professor Harry Kalven, Jr. That Study's immortality derives principally from its famous first premise: Meaningful evaluation of the jury system must originate from within the system itself. That premise propelled Professor Kalven through a massive national survey of trial judges. The judges' responses, under Kalven's insightful analysis, yielded an unprecedented profile of the American jury. In foundational fashion, those responses indelibly etched into legal …

Cultural Literacy And The Adversary System: The Enduring Problems Of Distrust, Misunderstanding And Narrow Perspective, Jeffrey W. Stempel

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The meandering road to discovery reform illustrates, among other things, the ineffectiveness of an atomized profession that lacks either sufficient understanding of the adversary system or the resources and forcefulness to address the practical impact of adversarialism. In some ways, lawyers reforming litigation can be characterized as poorer investigators than the sixsome who examined the elephant. The elephant sleuths were guilty of isolation and ignorance. Lawyers and policy makers not only exhibit a lack of information and empathy, but also often show an unwarranted distrust of or contempt for the elements of the profession with which they disagree. Unfortunately, however, …

Reassessing The Sophisticated Policyholder Defense In Insurance Coverage Litigation, Jeffrey W. Stempel

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Insurance law often is ironically regarded as both consistent and confusing. However, the 1980s saw significant flowering in the development of an insurance coverage interpretation doctrine that, although seriously flawed in its present form, offers the as yet untapped potential of substantial improvement in judicial construction of commercial insurance policies through seemingly inconsistent treatment of insurance coverage disputes.

During the past two decades, in response to the prodding of lawyers representing insurers, courts have increasingly noted that not all insurance policyholders are equal. Some have more money and bargaining clout than others. Some have more sophistication and understanding about the …

Sanctions, Symmetry, And Safe Harbors: Limiting Misapplication Of Rule 11 By Harmonizing It With Pre-Verdict Dismissal Devices, Jeffrey W. Stempel

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With only a small risk of overstatement, one could say that sanctions in civil litigation exploded during the 1980s, with the 1983 amendment to Federal Rule of Civil Procedure 11 acting as the principal catalyst. From 1938 until the 1983 amendment, only two dozen or so cases on Rule 11 were reported, with courts rarely imposing sanctions. Although a few cases were notable by virtue of sanction size, prestige of the firm sanctioned, or publicity attending the underlying case, the legal profession largely regarded Rule 11 as a dead letter. In addition, other sanctions provisions, such as Federal Rule of …

Giving Notice: An Argument For Notification Of Putative Plaintiffs In Complex Litigation, Marjorie A. Silver

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Professor Silver advocates recognition of an inherent judicial power to send or authorize notice of pending litigation to potentially interested persons with unfiled claims. Recognizing such a judicial power is consistent with recent legal developments establishing a role for judges in expediting and managing federal litigation. Although the Federal Rules of Civil Procedure only explicitly provide for notice to potential parties in Rule 23 class action litigation, Professor Silver demonstrates that a more general judicial power to notify putative plaintiffs is consistent with the federal rules and the Constitution. She also shows that the first amendment values support a judicial …

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

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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 …

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

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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 …