Civil Procedure Commons^™

Imagining Judges That Apply Law: How They Might Do It, James Maxeiner

All Faculty Scholarship

"Judges should apply the law, not make it." That plea appears perennially in American politics. American legal scholars belittle it as a simple-minded demand that is silly and misleading. A glance beyond our shores dispels the notion that the American public is naive to expect judges to apply rather than to make law.

American obsession with judicial lawmaking has its price: indifference to judicial law applying. If truth be told, practically we have no method for judges, as a matter of routine, to apply law to facts. Our failure leads American legal scholars to question whether applying law to facts …

There's A Pennoyer In My Foyer: Civil Procedure According To Dr. Seuss, Elizabeth Chamblee Burch

Scholarly Works

This is what it purports to be: a Seussian take on civil procedure. It’s a short, fun essay that covers (1) the iron triangle of civil procedure - the role of lawyers, judges, and juries, and (2) prominent civil procedure doctrines, such as personal jurisdiction, Erie, pleading, discovery, and joinder.

Chief William's Ghost: The Problematic Persistence Of The Duty To Sit Doctrine, Jeffrey W. Stempel

Scholarly Works

The duty to sit concept or “doctrine”—or at least what I term the “pernicious” version of the concept—emphasizes a judge's obligation to hear and decide cases unless there is a compelling ground for disqualification and creates a situation in which judges are erroneously pushed to resolve close disqualification issues against recusal when the presumption should run in exactly the opposite direction. In close cases, judges should err on the side of recusal in order to enhance public confidence in the judiciary and to ensure that subtle, subconscious, or hard-to-prove bias, prejudice, or partiality does not influence decision-making. The pernicious version …

Reluctant Judicial Factfinding: When Minimalism And Judicial Modesty Go Too Far, Scott A. Moss

Publications

No abstract provided.

What Is The Erie Doctrine? (And What Does It Mean For The Contemporary Politics Of Judicial Federalism?), Adam N. Steinman

Faculty Scholarship

As when Erie Railroad Co. v. Tompkins was decided seventy years ago, federal courts today are seen as more favorable to corporate and business interests than many of their state-court brethren. The current situation is due in no small part to federal courts' comparatively pro-defendant approaches to summary judgment, class certification, and other procedural issues. The Court's decision in Bell Atlantic Corp. v. Twombly, which tilts federal pleading standards in favor of defendants, will likely have similar federalism implications. This Article presents a straightforward argument that the Erie doctrine may require federal courts to follow state-law standards on summary judgment, …

The Place Of Court-Connected Mediation In A Democratic Justice System, Nancy A. Welsh

Faculty Scholarship

A justice system, and the processes located within it, ought to deliver justice. That seems simple enough. But, of course, delivering justice is never so simple. Justice and the systems that serve it are the creatures of context.

This Article considers mediation as just one innovation within the much larger evolution of the judicial system of the United States. First, this Article outlines how the values of democratic governance undergird our traditional picture of the American justice system, presumably because the invocation of such values helps the system to deliver something that will be respected by the nation’s citizens as …

Induced Litigation, Tracey E. George, Chris Guthrie

Vanderbilt Law School Faculty Publications

If "justice delayed" is "justice denied,"justice is often denied in American courts. Delay in the courts is a "ceaseless and unremitting problem of modem civil justice" that "has an irreparable effect on both plaintiffs and defendants." To combat this seemingly intractable problem, judges and court administrators routinely clamor for additional judicial resources to enable them to manage their dockets more "effectively and efficiently." By building new courthouses and adding new judgeships, a court should be able to manage its caseload more efficiently. Trial judges should be able to hold motion hearings, host settlement conferences, and conduct trials in a timely …

Processing Civil Rights Summary Judgment And Consumer Discrimination Claims, Deseriee A. Kennedy

Scholarly Works

No abstract provided.

Judicial Lobbying At The Wto: The Debate Over The Use Of Amicus Curiae Briefs And The U.S. Experience, Padideh Ala'i

Scholarly Articles in Law Reviews & Journals

The continuing debate over the use of amicus curiae briefs at the World Trade Organization (“WTO”) raises interesting questions about the influence of the U.S. legal system on the WTO dispute settlement process. Specifically, it brings to the surface differences between legal cultures and the fact that the U.S. legal culture with its emphasis on procedure is not readily transferable to the WTO. Comparing the controversy regarding the use of amicus curiae briefs before WTO Panels and the Appellate Body with the history and evolution of the institution of amicus curiae before the U.S. Supreme Court may help explain the …

Studying Deck Chairs On The Titanic, William L. Reynolds, William M. Richman

Faculty Scholarship

No abstract provided.

Specifying Grounds For Judicial Disqualification In Federal Courts., Leslie W. Abramson

Faculty and Staff Scholarship

One essential component of equal justice under the law is a neutral and detached judge to preside over the court proceedings. Public confidence in the legal system is maintained when a judge has no interest in the parties, attorneys or subject matter of the litigation. Sua sponte or by motion of a party, a federal judge is subject to disqualification for conflicts of interest on both constitutional and statutory grounds

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 …

Section 1983, Honorable George C. Pratt, Martin A. Schwartz, Leon Friedman

Touro Law Review

No abstract provided.

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 …

Report On Survey Of The Bar, Committee On Federal Courts Of The New York State Bar Association

Touro Law Review

No abstract provided.

Civil Procedure—Collateral Estoppel—The Evolution Of Collateral Estoppel In Arkansas: Is Mutuality Of Estoppel An Anachronism, Ronald Carl Wilson

University of Arkansas at Little Rock Law Review

No abstract provided.

The Judge's Role In Fostering Voluntary Settlements, Thomas D. Lambros

Villanova Law Review (1956 - )

No abstract provided.

Is Justice Delayed? A Report From The Court Administrator, C. R. Huie, G. Lawrence Jegley

University of Arkansas at Little Rock Law Review

No abstract provided.

Stump V. Sparkman, Lewis F. Powell Jr.

Supreme Court Case Files

No abstract provided.

The Use Of Advisory Juries In Obscenity Cases, Jeffrey B. Berman

Faculty Works

Almost two hundred years ago, the Founding Fathers faced the question of whether or not the Constitution should provide for a trial by jury in civil cases in federal courts. The Constitutional Convention said no, 1 but the state ratifying conventions said yes and won the day. Today, trial judges must periodically face the question of whether or not there is a right to a trial by jury in civil cases. The trial judge's decision is, however, different from that of the Founding Fathers. The trial judge must decide whether a right to a jury trial exists in a particular …

Arizona's Inferior Courts, Harold H. Bruff

Publications

For many citizens Arizona's inferior courts provide their primary, perhaps only, contact with the state's justice system. This Article--based in large part upon a thorough empirical and personal study of these lower courts--discusses the role that the courts play, the procedures that they observe, the qualifications of the personnel they employ, and the sufficiency of the justice they render. These findings are then evaluated, and recommendations for change are made.

Hogg's Treatise And Forms, L. C.

West Virginia Law Review

No abstract provided.