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Bureaucratizing the Courts? Finding MDL’s Place in the Traditional Legal Culture

Volume 99, No. 2 : Autumn 2015


Editor's Note Editor's Note

Setting the tone
by Paul W. Grimm


The PATENT Act  |  The Law, the Legal System, or the Administration of Justice  |  The FISA Court’s Tightrope Act  |  and more 


A Passion for Justice:
Judge Matthew J. Perry, Jr.

by J. Michelle Childs


Bureaucratizing the Courts? Finding MDL’s Place in the Traditional Legal Culture

by Patrick Higginbotham

Over the past three decades three forces gained prominence in the narrative of the 1938 rules: the decline of trials with a companion embrace by bench and bar of arbitration and other trial avoidance devices, and responses by the judiciary to the generation of a large number of suits by a single event, failed product, or other mass disaster. Each of these three strands of history has drawn commentary recording an array of concerns over etiology, constitutionality, and consequence. Despite their interlaced interactions we persist in treating them as distinct phenomena. My objective in this brief writing is to suggest that in our struggle to respond in efficient ways to this challenge, we are shadowed by doubts that they are but parts of a larger albeit unattractive picture of independent inferior federal courts fading into administrative bureaucracies in full embrace of a utilitarian vision of due process, unwilling to bend to intrinsic values

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Authentication: What Every Judge and Lawyer Needs To Know About Electronic Evidence

by Gregory Joseph

Not long ago, “friend” was a noun, “yelp” meant a shrill bark, “twitter” referred to a chirp, a “tumbler” was a gymnast or a glass, and “facebook,” “youtube,” and “instagram” were gibberish. Cases now rise and fall on the admissibility of Facebook profiles, Yelp reviews, Twitter tweets, YouTube videos, Instagram photos, Tumblr posts, and other social media evidence — and more conventional, but only slightly older, electronic data like text messages, emails, search engine results, and webpages (live or archived). While the media are new, the applicable evidentiary principles are familiar and have easily adapted to them. The two overarching issues are authentication and hearsay. This article focuses on authentication beginning with the critical, and very distinct, roles of judge and jury in deciding that question. The article then turns to authentication of website data, moving from conventional webpages to social media pages. It concludes with a discussion of email, text, and social media messages.

Shooting From the Hip: Concealed Cameras in the United States Supreme Court

by Kyle C. Kopko and Erin Krause

Recently, and despite restrictions on cameras in the Supreme Court, the public received its first video glimpse of the Court in session. A group named 99Rise — an organization affiliated with the Occupy movement — smuggled a hidden video camera into the Supreme Court on at least three different occasions. They did so first on Oct. 8, 2013, to film part of the oral arguments in McCutcheon v. FEC, and then again on Feb. 26, 2014, during the oral arguments of Octane Fitness v. Icon Health & Fitness. While these security breaches represent the first time that a session of the Supreme Court was recorded with a video camera, it was not the first time an observer smuggled a camera into the high court to document the justices in action. Scholars have usually acknowledged that there are one or two photographs of the Supreme Court in session. There are, however, at least three known photographs in existence, in addition to the videos captured by 99Rise. Our purpose here is to discuss how these three images of the Court — all taken in the 1930s — came into existence and discuss a potential explanation as to why cameras were originally banned from the Supreme Court

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The MDL Vortex Revisited

by Thomas Metzloff

The conventional wisdom is that the multidistrict litigation process is generally applicable to a wide range of litigation types, and that mass torts can be included as “one among many” types of lawsuits potentially subject to the MDL process. While one can view the MDL case statistics to support that view, a more careful examination of the MDL data as it now stands reveals a very different reality: Mass-tort claims have come to dominate the MDL docket. This growing trend raises questions as to how mass torts are shaped, defined, and ultimately resolved through the MDL process. Given the enormous potential liability associated with mass-tort claims, understanding the procedural processing of these claims is both interesting and important.

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Wrangling the Beast: Creating New Standards and Best Practices for MDL

by Jamie L. Dodge

With multidistrict litigation cases occupying a full third of the federal docket, would you know how to litigate or adjudicate one? If your answer is a bit timid, it may well be with good reason. Although these cases are ubiquitous, for many years, a handful of prominent judges drove the development of multidistrict litigation and the treatment of mass torts more generally. But, with the expanded use of MDL in recent years, virtually every federal judge now serves as a transferor judge during his or her career. This article describes a unique effort by the bench and bar, with the guidance of the Duke Law School Center for Judicial Studies, to create the MDL Standards and Best Practices for Large and Mass-Tort MDLs report. Understanding how the report evolved helps to shed light on why it is such a valuable contribution to the MDL bench and bar alike.

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A Closer Look at New Pleading in the Litigation Marketplace

by Scott Dodson

Courts and parties undoubtedly are affected by the New Pleading regime of Twombly and Iqbal. But, as rational actors, they also are responsive to it. Their responsive behaviors both mitigate the expected effects of New Pleading and cause unintended effects. Assessing New Pleading thus requires understanding and consideration of these market forces and reactive implications. We are now more than five years out from the momentous shift in federal civil pleading standards from the old “notice pleading” regime of Conley v. Gibson to the “New Pleading” regime of Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal. Although many courts and commentators promptly weighed in on the import of this shift, distance can be useful; time often tells whether developments are net positive or negative.

The Doctrine of the Last Antecedent, the Example in Barnhart, and Why Both are Weak

by Joseph Kimble

Start with an innocuous example: men and women who are tall. Are you talking about all men or only those who are tall? That is, does the who-clause modify both nouns? There’s no way to tell — no syntactic principle, no grammatical rule or convention, that resolves the ambiguity. Yes, English meaning depends on placement, and ideally the modifier would attach only to the nearest antecedent, but here it may not. You might guess that since the example seems to have something to do with a minimum-height standard and men are generally taller to begin with, the modifier applies only to women. Then again, some men are short, and why would you set up a standard that could be applied unevenly? Without the context, there’s just no way to even begin to tell.



Discovery Cost Shifting: Has Its Time Come? John Vail, former vice president of the Center for Constitutional Litigation, andAlex Dahl, general counsel to Lawyers for Civil Justice, discuss the merits and challenges of shifting the costs of discovery to the requestor. > Download the PDF

Book Review Book Review

A Judge’s Life: Scott D. Makar says Richard Posner’s book Reflections on Judging is “much like a friendly, but deeply thoughtful and literate, conversation with your favorite professor about the important issues of the day.”


A dozen canons of statutory and constitutional text construction, by Supreme Court Justice Antonin Scaliaand Bryan A. Garner.