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Articles 1 - 22 of 22
Full-Text Articles in Legal History
The American Jury System: A Synthetic Overview, Richard O. Lempert
The American Jury System: A Synthetic Overview, Richard O. Lempert
Articles
This essay is intended to provide in brief compass a review of much that is known about the American jury system, including the jury’s historical origins, its political role, controversies over its role and structure, its performance, both absolutely and in comparison to judges and mixed tribunals, and proposals for improving the jury system. The essay is informed throughout by 50 years of research on the jury system, beginning with the 1965 publication of Kalven and Zeisel’s seminal book, The American Jury. The political importance of the jury is seen to lie more in the jury’s status as a one …
Iron Man Of The Rules, Patrick E. Higginbotham
Iron Man Of The Rules, Patrick E. Higginbotham
University of Michigan Journal of Law Reform
To grasp Professor Cooper's contribution to rulemaking, it is helpful to review issues that the Advisory Committee confronted during his tenure. I will focus on the first four of his twenty years of service.
Ed Cooper, Rule 56, And Charles E. Clark's Fountain Of Youth, Steven S. Gensler
Ed Cooper, Rule 56, And Charles E. Clark's Fountain Of Youth, Steven S. Gensler
University of Michigan Journal of Law Reform
Nobody had a greater impact on the formulation of the original Civil Rules than Clark. His role as both the principal architect2 and the principal draftsman3 of the Civil Rules is well known. As Professor Wright once put it, although the Civil Rules were a joint effort, "the end product bears the unmistakable Clark stamp."4 But Clark started shaping the Civil Rules even before drafting began.5 Initially, Chief Justice Hughes thought the civil rules project should be limited to creating rules for actions at law (leaving in place-and separate-the existing equity rules).6 A passionate advocate for merging law and equity …
Professor Edward Cooper: The Quintessential Reporter, Mary Kay Kane
Professor Edward Cooper: The Quintessential Reporter, Mary Kay Kane
University of Michigan Journal of Law Reform
Ed Cooper's twenty-year service as the Chief Reporter for the Civil Rules Advisory Committee deserves special recognition and tribute not only because of its longevity-which is remarkable in and of itself-but more particularly, because of the scope and depth of the rule changes he has helped to shepherd into law.
Professor Ed Cooper: Zen Minimalist, Linda S. Mullenix
Professor Ed Cooper: Zen Minimalist, Linda S. Mullenix
University of Michigan Journal of Law Reform
In celebration of his twentieth year as the Reporter for the Advisory Committee on Civil Rules, I write to contribute some modest reflections on Professor Cooper's tenure as Advisory Committee Reporter. My comments are those of an academic who had the opportunity to observe the Advisory Committee for nearly a decade, but they are largely the comments of an outsider. Readers might be disappointed to find that there is no dish or inside baseball here.
Shoes That Did Not Drop, Richard Marcus
Shoes That Did Not Drop, Richard Marcus
University of Michigan Journal of Law Reform
I take "Shoes That Did Not Drop"' as my topic because I appreciate, by now, that what the Advisory Committee on Civil Rules does not do is, in some ways, as important as what it does. Similarly, the decision not to do something is equally important as, and may be more difficult than, the decision to do something. It may sometimes seem that amending the Rules is too easy. Greg Joseph once said that they are amended as often as the telephone book. Some even think that it was a mistake to create a Rules Committee.3 These reactions are overstated, …
The Twelve-Person Federal Civil Jury In Exile, Thomas D. Rowe Jr.
The Twelve-Person Federal Civil Jury In Exile, Thomas D. Rowe Jr.
University of Michigan Journal of Law Reform
In the mid-1990s, the Advisory Committee on Civil Rules, with Fifth Circuit Judge Patrick Higginbotham as Chair and our honoree, Professor Ed Cooper, in the early years of his long service as Reporter, unanimously (coincidentally, by a 12-0 vote) proposed an amendment to Federal Rule of Civil Procedure 48 that would have required the seating of twelve-member juries in federal civil trials. The requirement of a unanimous verdict, unless waived by the parties, and the abolition of alternate jurors would have been unaffected; attrition could reduce a jury's size below twelve members, with a floor of six unless the parties …
Some Very Personal Reflections On The Rules, Rulemaking, And Reporters, Arthur R. Miller
Some Very Personal Reflections On The Rules, Rulemaking, And Reporters, Arthur R. Miller
University of Michigan Journal of Law Reform
My entry into the world of federal rulemaking was one of those unpredictable but welcome fortuities of life. In early 1961, more than a half century ago, I was a happy and progressing associate in a prominent medium-sized, Wall Street, New York City law firm. Columbia Law School approached me to be the Associate Director of its newly formed Project on International Procedure. They dangled several attractive incentives: I could try my hand at teaching some civil procedure; hobnob with the giants of the Columbia faculty, like Herb Wechsler, Walter Gellhorn, Maury Rosenberg, and Jack Weinstein; and take my first …
Is Now The Time For Simplified Rules Of Civil Procedure, Paul V. Niemeyer
Is Now The Time For Simplified Rules Of Civil Procedure, Paul V. Niemeyer
University of Michigan Journal of Law Reform
Unfortunately, any objective evaluation of current federal civil process will inevitably lead to the conclusion that the process is functioning inadequately in its purpose of discharging justice speedily and inexpensively. One need only ask any trial lawyer whether he can try a medium-sized commercial dispute to judgment in a federal court in less than three years and at a cost of less than six figures. Is the iconic appellation of "making a federal case out of a dispute" not the ultimate condemnation of current judicial process in federal courts? Can we understand the private bar's flight from federal courts to …
They Were Meant For Each Other: Professor Edward Cooper And The Rules Enabling Act, Mark R. Kravitz, David F. Levi, Lee H. Rosenthal, Anthony J. Scirica
They Were Meant For Each Other: Professor Edward Cooper And The Rules Enabling Act, Mark R. Kravitz, David F. Levi, Lee H. Rosenthal, Anthony J. Scirica
University of Michigan Journal of Law Reform
This introduction to the essays in this Symposium illuminates Professor Ed Cooper's years as Reporter to the Civil Rules Committee by first briefly describing those who preceded him in the position and his own background. We then describe some of Ed Cooper's many contributions to the Civil Rules Committee, the Federal Rules, rulemaking, and civil procedure by examining the present state of the Rules Committees' work under the Rules Enabling Act. We conclude that after almost eighty years of experience under that Act, it is working well in large part because of the sound leadership provided by Ed Cooper over …
Edward Cooper As Curator Of The Civil Rules, Goeffrey C. Hazard Jr.
Edward Cooper As Curator Of The Civil Rules, Goeffrey C. Hazard Jr.
University of Michigan Journal of Law Reform
Ed Cooper has had a salient role in maintaining the Rules Committee process as a highly competent and stable element of lawmaking in this country. He is a consummate master of civil procedure and acutely understands the constitutional and political milieu in which the Rules process functions. Along with other similarly competent and observant Reporters, including the senior serving Reporter, Dan Coquillette, he has helped keep the Rules process and product as evenhanded as can be expected in our complicated legal system.
Pleading Under Section 11 Of The Securities Act Of 1933, Krista L. Turnquist
Pleading Under Section 11 Of The Securities Act Of 1933, Krista L. Turnquist
Michigan Law Review
The Securities Act of 1933 ("Securities Act") requires full and fair disclosure of the nature of securities sold in interstate and foreign commerce. Section 11 of the Securities Act prohibits false or misleading registration statements. It also provides buyers a private remedy for false or misleading statements against any signer of the registration statement, any partner or director of the issuer, any professional involved in preparing or certifying the statement, and any underwriter. The rule appears simple: if there is a material misstatement or omission in the registration statement, the buyer may sue the seller. Courts disagree, however, over how …
Federal Rule 44.1 And The "Fact" Approach To Determining Foreign Law: Death Knell For A Die-Hard Doctrine, Arthur R. Miller
Federal Rule 44.1 And The "Fact" Approach To Determining Foreign Law: Death Knell For A Die-Hard Doctrine, Arthur R. Miller
Michigan Law Review
The objective of this article is to analyze Federal Rule of Civil Procedure 44.1, which was developed as part of the reforms of the last decade and became effective on July 1, 1966 and to assess its capacity to rationalize the process of determining foreign law in the federal courts. What follows is an excursion through the past doctrine and into the probable future treatment of foreign law in the federal courts, an exploration of the interrelationship between the new Rule and other phases of federal civil procedure, and an analysis of the prospect that the Rule's effectiveness may be …
Federal Civil Procedure-Federal Rule 12(E): Motion For More Definite Statement- History, Operation And Efficacy, Stefan F. Tucker S.Ed.
Federal Civil Procedure-Federal Rule 12(E): Motion For More Definite Statement- History, Operation And Efficacy, Stefan F. Tucker S.Ed.
Michigan Law Review
The purpose of this comment is to trace the history of the motion for more definite statement as provided for in the Federal Rules, analyze the reasons for granting or denying the motion, and propose an answer to the question of whether Rule 12(e) is necessary, or superfluous, as part of modern federal pleading procedure.
Specific Performance In France And Germany, John P. Dawson
Specific Performance In France And Germany, John P. Dawson
Michigan Law Review
Edgar Durfee studied long and closely the subject of specific performance. He taught it for many years, wrote about it and planned to ·write more. He conceived it broadly, as he did every subject that ever had his attention, but he had a lively interest in details, including very technical details. Long before others and much more than most, he saw the importance of our remedial system both in shaping law and as a reflection of its larger purposes. All those who learned from him will remember as long as memory lasts the insight he gave and the hidden meanings …
Civil Procedure On The American Frontier, William Wirt Blume
Civil Procedure On The American Frontier, William Wirt Blume
Michigan Law Review
The Treaty of Greenville (1795) by which Indian tribes of the Northwest Territory ceded to the United States the eastern and southern parts of the area which later became the state of Ohio, provided that certain small areas north and west of the treaty line should also be ceded.
The Union Of Law And Equity, Charles W. Joiner, Ray A. Geddes
The Union Of Law And Equity, Charles W. Joiner, Ray A. Geddes
Michigan Law Review
This paper was prepared for the guidance of a Committee on Michigan Procedural Revision jointly created by the Michigan Legislature, the Supreme Court of Michigan, and the Michigan State Bar to recommend revision of Michigan statutes and rules. Toe need for the joinder of law and equity procedure was thought to be so fundamental that this paper was prepared as a basic study for the committee. In it an attempt is made to bring to the attention of the Michigan lawyers, judges, and legislators an analysis of the Michigan Constitution, statutes, and cases and the experience of other states that …
Rules Of Practice And Procedure: A Study Of Judicial Rule Making, Charles W. Joiner, Oscar J. Miller
Rules Of Practice And Procedure: A Study Of Judicial Rule Making, Charles W. Joiner, Oscar J. Miller
Michigan Law Review
The rule-making power of the courts in the United States is is brought into focus wherever procedural reform is undertaken. As more and more states have undertaken rev1s1on of judicial procedures, the power and authority of courts to promulgate rules of practice and the definition of the scope of such rules have claimed increasingly the attention of legal writers. This trend can be attributed in part to a growing realization that statutes governing practice and procedure in courts, enacted by legislatures meeting every year or two, have failed to achieve that minimum standard in the administration of justice necessary to …
Morgan: Some Problems Of Proof Under The Anglo-American System Of Litigation, Roy R. Ray
Morgan: Some Problems Of Proof Under The Anglo-American System Of Litigation, Roy R. Ray
Michigan Law Review
A Review of Some Problems of Proof Under the Anglo-American System of Litigation. By Edmund Morris Morgan.
Limitations And The Federal Courts, William Wirt Blume, B. J. George Jr.
Limitations And The Federal Courts, William Wirt Blume, B. J. George Jr.
Michigan Law Review
Though as a practical matter it is difficult to secure passage of uniform legislation in all states, particularly when the subject matter has so long been considered as of local interest only, the need for such legislation in the case of the statute of limitations seems clear. To the extent that such a statute is adopted, the problem of varying limitation periods upon particular causes of action and similar causes of action will be removed. Only by a uniform state treatment of the problem will the conflict among federal districts resulting from the uniformity of result requirement of Erie Railroad …
Federal Injunction Against Proceedings In State Courts: The Life History Of A Statute, Edgar Noble Durfee, Robert L. Sloss
Federal Injunction Against Proceedings In State Courts: The Life History Of A Statute, Edgar Noble Durfee, Robert L. Sloss
Michigan Law Review
The Judicial Code provides, in section 265, that "the writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a State," except where authorized by the Bankruptcy Act. This provision, minus the bankruptcy exception, first appeared in an act of 1793, amending the Judiciary Act of 1789. We know next to nothing of the parliamentary history of this statute. We do, however, know that the basic political issue in the framing of the Constitution was that of states' rights, the question how far the new government should be a …
Book Reviews, Edwin W. Patterson, Edson R. Sunderland, C E. Griffin
Book Reviews, Edwin W. Patterson, Edson R. Sunderland, C E. Griffin
Michigan Law Review
The title of this brilliant little volume might, more accurately, have been, "The Spirits of the Common Law," for it depicts the common law as the battleground of many conflicting spirits, from which a few relatively permanent ideas and ideals have emerged triumphant. As a whole, the book is a pluralistic-idealistic interpretation of legal history. Idealistic, because Dean Pound finds that the fundamentals of the 'common law have been shaped by ideas and ideals rather than by economic determinism or class struggle; he definitely rejects a purely economic interpretation of legal history, although he demands a sociological one (pp. io-ii). …