To become better judges
by Virginia Baker Norton
The blurry line between personal and professional conduct; changing state supreme court compositions; fixing discovery; and more.
Robert Carter: From advocate to jurist
by James C. Frances IV
The judge’s job in discovery
by John K. Rabiej
In my 14 years as a federal district court judge, I estimate that I have sentenced well over 2,000 individuals. Sentencing is the most multifaceted, emotional, and challenging task a judge performs. After a particularly difficult sentencing, I often say, sometimes to myself and sometimes aloud, “Who appointed me God?” or “Why did I possibly think that I was the right person for this job?” or “Why did anyone possibly think I was the right person for this job?” . . . Given that sentencing is the most sobering and important task given to us as judges, I think it instructive for us to step back every now and then to analyze what we are doing and why we are doing it.
Most everyone agrees that in the American civil justice system many important legal rights go unvindicated, serious losses remain uncompensated, and those called upon to defend their conduct are often forced to spend altogether too much. Eighty percent of the members of the American College of Trial Lawyers report that pretrial costs and delays keep injured parties from bringing valid claims to court. Seventy percent also say attorneys use the threat of discovery and other pretrial costs as a means to force settlements that aren’t based on the merits. The upshot? Legal services in this country are so expensive that the United States ranks near the bottom of developed nations when it comes to access to counsel in civil case. The real question is what to do about it.
In the second in a series of imagined conversations, a cast of characters including federal judges, journalists, and lawyers debates the benefits and the pitfalls of judges speaking publicly about the law, specific cases, and what judges do day to day. Should judges be able to speak their mind about current events? Can judges play a role in educating the public about the law and the court system? Or should judges speak only through their written opinions and words in the courtroom in order to maintain impartiality?
It is now well established that a United States federal court may compel a foreign party challenging the court’s exercise of personal jurisdiction to engage in jurisdictional discovery pursuant to the Federal Rules of Civil Procedure. Similarly, when a foreign party is subject to personal jurisdiction, a federal court may compel a foreign party to engage in merits discovery pursuant to the Federal Rules of Civil Procedure, without resorting first to any applicable international treaties. This is the holding of the Supreme Court’s decision in Societe National Industrielle Aerospatiale v. U.S. District Court for the Southern District of Iowa, 482 U.S. 522 (1987). However, Aerospatiale did not answer the question of how merits discovery can be taken from a foreign party before a jurisdictional challenge is resolved
In June 2001, the United States Supreme Court decided three closely watched deportation cases by 5-4 votes: Zadvydas v. Davis; Calcano-Martinez v. INS.; and INS. v. St. Cyr. The prospective deportees avoided deportation in all three cases; the “liberal” position, if you will, prevailed. The Court at the time consisted of Chief Justice Rehnquist and, in order of seniority, Justices Stevens, O’Connor, Scalia, Kennedy, Souter, Thomas, Ginsburg, and Breyer. Stevens, Sourter, Ginsburg, and Breyer were in the majority in all three of these cases; Rehnquist, Scalia, and Thomas were in dissent. Kennedy provided the deciding vote in Calcano-Martinez and St. Cyr; O’Connor in Zadvydas. The voting coalitions in these three cases were quite — but not perfectly — frozen. . . . But how fluid or stable are those coalitions? We develop in this article an index that measures the concept of fluidity in coalitions between judges in supreme courts in American jurisdictions.
During the past three years, China has proclaimed a judicial reform campaign that aims to follow the “rule by law” (yifa zhiguo) in civil dispute resolutions. In delivering the 2014 annual work report of the Supreme People’s Court to the National People’s Congress on March 12, 2015, Zhou Qiang (president of the SPC) said, “2015 is a critical year for deepening the [judicial] reform in a comprehensive manner, it is a year to fully implement the ‘rule by law.’ … [We] endeavour to let the people feel that justice is done in every case.” The adoption of “rule by law” principles would be particularly welcomed by international companies and likely would attract more companies to do business in China. But any real change in Chinese judicial practice and culture is unlikely. The Chinese judiciary has always been obsessed with the social effect of civil adjudication. One may attribute this to Wang Shengjun, president of the SPC from 2008 to 2013, who turned Chinese courts into state-funded mediation centers designed to preserve a “harmonious society” (hexie shehui).
Attorneys Daniel Bean and Roy Altman discuss the impact of Iqbal and Twombly on their practices.
Melissa Hart, professor of law at the University of Colorado, finds Madison’s Music: On Reading the First Amendment to be thought provoking and insightful, if not ultimately persuasive. > Download the pdf
In our centennial feature, we excerpt a diary written by George Williams, former American Judicature Society executive vice president, during a visit to China in 1984.