Courts Commons^™

Introduction To Vanishing Trial Symposium, John M. Lande

Faculty Publications

This symposium shows that "vanishing trial" phenomena touch an extremely broad range of issues including transformations of society, courts, dispute resolution procedures, and even the nature of knowledge. These phenomena relate to decisions by litigants in particular cases, court systems, national policy, and international relations. This subject is too large and complex for any symposium to analyze fully, especially at this early stage of analysis. This symposium makes an important contribution to this study, with theories and evidence about the existence, nature, and extent of reductions in trials and similar proceedings. It elaborates a range of theories about possible causes …

Convicting The Innocent: Aberration Or Systemic Problem?, Rodney J. Uphoff

Faculty Publications

In practice, the right to adequate defense counsel in the United States is disturbingly unequal. Only some American criminal defendants actually receive the effective assistance of counsel. Although some indigent defendants are afforded zealous, effective representation, many indigent defendants and almost all of the working poor are not. The quality of representation a defendant receives generally is a product of fortuity, of economic status, and of the jurisdiction in which he or she is charged. For many defendants, the assistance of counsel means little more than counsel's help in facilitating a guilty plea. With luck, money, and location primarily determining …

Triptych: Sectarian Disputes, International Law, And Transnational Tribunals In Drinan's "Can God And Caesar Coexist?", Christopher J. Borgen

Faculty Publications

Can international law be used to address conflicts that arise out of questions of the freedom of religion? Modern international law was born of conflicts of politics and religion. The Treaty of Westphalia, the seed from which grew today's systems of international law and international relations, attempted to set out rules to end decades of religious strife and war across the European continent. The treaty replaced empires and feudal holdings with a system of sovereign states. But this was within a relatively narrow and historically interconnected community: Protestants and Catholics, yes, but Christians all. Europe was Christendom.

To what extent …

Law, Ideology, And Strategy In Judicial Decision Making: Evidence From Securities Fraud Actions, Michael A. Perino

Faculty Publications

Legal academics and political scientists continue to debate whether the legal, attitudinal, or strategic model best explains judicial decision making. One limitation in this debate is the high-court bias found in most studies. This article, by contrast, examines federal district court decisions, specifically interpretations of the Private Securities Litigation Reform Act of 1995. Initial interpretations of the Act articulated distinct liberal and conservative positions. The data compiled here support the hypothesis that the later emergence of an intermediate interpretation was the result of strategic statutory interpretation rather than simply judges acting consistently with their ideological preferences, although there is some …

Jury Innovation In Practice: The Experience In New York And Elsewhere, Paula Hannaford-Agor

Faculty Publications

The article analyzes data reported in the National Center for State Courts 2006 survey of civil and criminal jury trial practice. The focus is on New York's use of various techniques to improve jury participation compared to use by nearby states, Connecticut and New Jersey, and other state courts. Innovative techniques discussed include juror notebooks, note-taking, juror questions of witnesses, and jury instructions. The article concludes that New York's courts lag behind other state courts in adopting these practices, and that both success in practice and ABA recommendations should be persuasive to New York judges that improvements can be made …

Third Judicial Circuit Of Michigan Jury System Assessment, Paula Hannaford-Agor

Faculty Publications

In November 2005, the State Court Administrator's Office (SCAO) contracted with the National Center for State Courts (NCSC) to assess the qualification and summoning procedures used by the Third Circuit Court (Wayne County) to identify procedural and operational factors that might contribute to the disparity in minority populations in its jury pool and to make recommendations to improve the representation of those minorities. To conduct this assessment, the NCSC collected data about every stage of the jury management process in 2004 and 2005.

In this report, the NCSC makes eight recommendations to the Third Circuit to address the procedural and …

Should The Supreme Court Fear Congress?, Neal Devins

Faculty Publications

No abstract provided.

Jurisdiction And The Internet: Returning To Traditional Principles To Analyze Network-Mediated Contacts, A. Benjamin Spencer

Faculty Publications

Courts have been evaluating the issue of personal jurisdiction based on Internet or "network-mediated" contacts for some time. The U.S. Supreme Court has remained silent on this issue, permitting the federal appeals courts to develop standards for determining when personal jurisdiction based on network-mediated contacts is appropriate. Unfortunately, the circuit approaches-which emphasize a Web site's "interactivity" and "target audience" -are flawed because they are premised on an outdated view of Internet activity as uncontrollably ubiquitous. This view has led courts to depart from traditional jurisdictional analysis and impose elevated and misguided jurisdictional standards. This article argues that courts should reinstitute …

Justice Blackmun And The Spirit Of Liberty, Richard C. Reuben

Faculty Publications

As we see in this symposium, Justice Harry Blackmun is as controversial in death as he was in life. We live in a time of increasing absolutism, where things are either black or white, red or blue, you are either for me or against me, my way or the highway. It is when we are swayed by the sirens of absolutism that we are most likely to make mistakes, for absolutism diminishes our capacity to see nuance, much less to appreciate and account for it in our reasoning. This is a dangerous thing in a court, and in a democracy. …

Trial Trends And Implications For The Civil Justice System, Paula Hannaford-Agor, Robert C. Lafountain, Shauna Strickland

Faculty Publications

Bench and jury trials have been declining steadily for the past twenty years, both in absolute numbers and as a proportion of civil dispositions. This “vanishing trial” phenomenon was long suspected by many within the state court system, but has only recently been empirically confirmed. This issue of Caseload Highlights focuses on trends in civil trial characteristics and discusses possible causes of these trends and their implications for practitioners and policy-makers in state courts.

This abstract has been taken from the body of the report.

Shifting The Focus From The Myth Of "The Vanishing Trial" To Complex Conflict Management Systems, Or I Learned Almost Everything I Need To Know About Conflict Resolution From Marc Galanter, John M. Lande

Faculty Publications

To say that The Vanishing Trial is a myth is not to suggest that the facts or analysis in Professor Marc Galanter's seminal report on the vanishing trial are fictional or inaccurate. Indeed, he marshals a massive amount of data to show that the number of trials and the trial rates have been declining for the past four decades, particularly in the federal courts. The report documents an apparent paradox: the proportion of cases going to trial has dropped sharply during the past forty years despite substantial increases in many other legal indicators including the number of lawyers, the number …

The Terminator As Eraser: How Arnold Schwarzenegger Used The Right Of Publicity To Terminate Non-Defamatory Political Speech, David Welkowitz, Tyler Ochoa

Faculty Publications

INTRODUCTION

While it is no longer unusual for a politician to have been a recent celebrity in the commercial world of entertainment, the Schwarzenegger bobblehead case is one of the rare cases in which a politician has filed a lawsuit asserting a right of publicity claim. However, the Schwarzenegger case and its settlement exposed some basic flaws in the analysis of celebrity rights problems, flaws that are not unique to its political context. Two of those flaws converged in this case and are the main subjects of this article. First, rights of publicity claims frequently are used as a "stealth" …

Technology-Augmented Courtrooms: Progress Amid A Few Complications, Or The Problematic Interrelationship Between Court And Counsel, Fredric I. Lederer

Faculty Publications

No abstract provided.

Terminating Calder: "Effects" Based Jurisdiction In The Ninth Circuit After Schwarzenegger V. Fred Martin Motor Co., A. Benjamin Spencer

Faculty Publications

In Calder v. Jones, the Supreme Court clearly and succinctly determined that personal jurisdiction is appropriate over a defendant whose only contact with the forum state is its intentional actions aimed at and having harmful "effects" in the forum state. Illustrating the extent to which the law of personal jurisdiction had been relaxed from the time of Pennoyer v. Neff and International Shoe Co. v. Washington, Calder also extended the reach of state courts by permitting jurisdiction over out-of-state defendants on the strength of the plaintiffs' connections with the forum state. Although Calder provided a welcome and much …

Statutory Interpretation In Econotopia, Nathan B. Oman

Faculty Publications

Much of the debate in the recent revival of interest in statutory interpretation centers on whether or not courts should use legislative history in construing statutes. The consensus in favor of this practice has come under sharp attack from public choice critics who argue that traditional models of legislative intent are positively and normatively incoherent. This paper argues that in actual practice, courts look at a fairly narrow subset of legislative history. By thinking about the power to write that legislative history as a property right and legislatures as markets, it is possible to use Coase's Theorem and the concept …

Examining Voir Dire In California, Paula Hannaford-Agor, Nicole L. Waters

Faculty Publications

Much of the debate over peremptory challenge use in California was based primarily on anecdotal information that failed to provide a consistent or reliable view of ac­tual practices in the California superior courts. To help inform the debate, the Administrative Office of the Courts contracted with the National Center for State Courts to investigate current usage practices and estimate the potential impact of the proposed reductions in peremptory challenges. Because of the nexus between peremptory challenges and challenges for cause, the study was designed to examine pe­remptory challenges in the context of the entire voir dire process, including judicial decision …

Increasing The Jury Pool: Impact Of The Employer Tax Credit, Paula Hannaford-Agor

Faculty Publications

To address the problem of financial hardship associated with jury service, both the California Blue Ribbon Commission on Jury System Improvement and the Task Force on Jury System Improvements proposed implementation of a tax credit to encour­age employers to pay the salaries and wages of employees who are summoned for jury service. To assess the financial impact of the proposal on California employers as well as the state budget, the Administrative Office of the Courts (AOC) un­dertook the Juror Compensation Survey to document the extent to which California employ­ers currently compensate employees while on jury service.

The completed surveys were …

The Majoritarian Rehnquist Court?, Neal Devins

Faculty Publications

No abstract provided.

The Citation Of Unpublished Opinions As Precedent, Martha Dragich

Faculty Publications

Professor Dragich examines the no-citation rules of the federal courts of appeals in light of the purpose and operation of the doctrine of precedent. The article concludes that no-citation rules are fundamentally incompatible with the rule of precedent. The rules also cannot be justified on grounds of economy or efficiency. The courts of appeals cannot legitimately declare decisions to be "non-precedential," and must not continue to forbid their citation.

Rulemaking From The Bench: A Place For Minimalism At The Icty, Megan A. Fairlie

Faculty Publications

This article explores the ability of the International Criminal Tribunal for the former Yugoslavia to create and amend its own Rules of Procedure and Evidence. It also focuses on the manner in which the Tribunal addresses issues that arise, throughout the course of its proceedings, for which its statute and rules are silent. This article advances the theory that, when confronted with issues that are controversial, complex, or for which there is a lack of consensus among national legal systems or the Tribunal’s judiciary, the Court should simply decide the case before it rather that create broad and binding rules. …

Symbolic Counter-Speech, Howard M. Wasserman

Faculty Publications

No abstract provided.

A Courtroom Diagnosis: Countering The Defense Of Temporary Brittle Bone Disease And Mild Oi, Joelle A. Moreno

Faculty Publications

In child abuse cases involving multiple fractures, prosecutors and investigators are increasingly facing a relatively new defense. In some jurisdictions, judges are allowing defense medical experts to testify that infants have not been abused, but instead suffer from a mild form of Osteogenesis Imperfecta (OI) or a purported variant of OI, Temporary Brittle Bone Disease (TBBD). These diagnoses are offered in cases where the injuries are highly specific for abuse because they involve: (1) fractures typical of abuse in different stages of healing; (2) infants who have tested negative for conventionally diagnosable metabolic bone diseases (including OI); and (3) infants …

Introduction: The Law, Technology & The Arts Symposium: The Past, Present And Future Of The Federal Circuit, Craig Allen Nard

Faculty Publications

Introduction to The Law, Technology & the Arts Symposium: The Past, Present and Future of the Federal Circuit, Cleveland, Ohio.

Why Do Hung Juries Hang?, Paula Hannaford-Agor, Valerie P. Hans, Nicole L. Mott, G. Thomas Munsterman

Faculty Publications

The National Center for State Courts examined dead-locked, or “hung,” juries to see what characteristics they share and how they might be avoided. As one part of the study, surveys of jurors, judges, and attorneys were conducted in four jurisdictions. The Central Division, Criminal, of the Los Angeles County (California) Superior Court and the Superior Court of the District of Columbia were selected because of reported concerns about hung jury rates in those jurisdictions. The Maricopa County (Arizona) Superior Court was chosen because of an innovative procedure there that permits judges to allow further evidence and arguments when a jury …

Building On Bedrock: The Continued Evolution Of Jury Reform, G. Thomas Munsterman, Paula L. Hannaford-Agor

Faculty Publications

Abundantly clear is that, far from being an enclave from the pressures and concerns of contemporary society, jury service readily absorbs and reflects those concerns in ways that can both support and challenge the American jus­tice system. Some of these concerns cut across many stages of jury service, and their effects are felt in unexpected ways. To sift through and identify the most noteworthy jury improvement efforts and concerns in the last seven years, we turned to technology (coincidently one of the hottest topics in jury service) and examined the topics that subscribers to Jur-E Bulletin, the National Center …

The Ultimate Independence Of The Federal Courts: Defying The Supreme Court In The Exercise Of Federal Common Law Powers, Ronald H. Rosenberg

Faculty Publications

No abstract provided.

Constitutional Empiricism: Quasi-Neutral Principles And Constitutional Truths, Timothy Zick

Faculty Publications

The absence of neutrality and objectivity in constitutional decision-making has vexed scholars and courts. In this Article, the author describes and analyzes "constitutional empiricism," a trend instituted by the Rehnquist Court, which is characterized by judicial reliance in constitutional review on empirical and scientific conventions and processes. Courts have generally relied upon traditional sources, such as text and history, to interpret consititutional powers and rights. In its search for neutrality and objectivity, however, the Court has recently turned not only to social science and other data, which are fast becoming common sources of interpretation, but also to the precepts and …

Evaluation Of The Centers For Complex Civil Litigation Pilot Program, Paula Hannaford-Agor, Nicole L. Mott, Timothy F. Fautsko

Faculty Publications

In January 2000, the Judicial Council responded to a recommendation of the Complex Litigation Task Force (task force) by establishing the Centers for Complex Litigation Pilot Program in the Superior Courts of Los Angeles, Orange, Contra Costa, Santa Clara, Alameda, and San Francisco counties. The task force recommendation was one of several proposed to improve judicial management of complex cases as a means to expedite case resolution, keeps costs reasonable, and promote effective decision making by the courts, parties and counsel. Participation in the Pilot Program required each site to commit to an individual calendar system dedicated exclusively to complex …

First Options, Consent To Arbitration, And The Demise Of Separability: Restoring Access To Justice For Contracts With Arbitration Provisions, Richard C. Reuben

Faculty Publications

This article describes the context and current state of the law in this area under the Federal Arbitration Act (FAA), urges the Court to continue its path toward actual consent to arbitration, and suggests an approach for finally reconciling the tension between Prima Paint and First Options. Part II describes the nature and historical context of the arbitrability problem. Part III focuses specifically on the doctrine of separability, which is the most critical (and most complex) of these exceptions. Part IV discusses the impact on separability of recent U.S. Supreme Court case law, especially the 1995 decision in First Options …

Congress And The Making Of The Second Rehnquist Court, Neal Devins

Faculty Publications

No abstract provided.