Crushed: Social Security Litigation in the Federal Courts

Volume 101 Number 3 : Autumn 2017

Departments

FROM THE EDITORFROM THE EDITOR

Restraint

by James Griffith

 

 

THE STORIED THIRD BRANCHTHE STORIED THIRD BRANCH

Gentleman judge and magnificent man

by Gene E.K. Pratter

On e-DiscoveryOn e-Discovery

What will AI mean for you?

by George Socha

FROM THE PUBLISHER

As I See It

by John K. Rabiej

REDLINES

Use bullet points. Ease up on dates.

by Joseph Kimble

Features

Crushed: Social Security Litigation in the Federal Courts

by Jonah B. Gelbach & David Marcus

Social security disability litigation poses big challenges for federal courts. Inconsistent procedures and high remand rates are just some of the difficulties. What factors explain why claimants prevail so often when they appeal to the federal courts, even after multiple layers of review within the agency? What factors explain variations in the rates at which various federal districts remand claims to the agency? How does the litigation of disability appeals vary from district to district? This article summarizes a new study that offers perspective on what’s wrong and how it can be fixed.

Roundtable: The State of the Judiciary

by David F. Levi with Carolyn B. Kuhl, Margaret H. Lemos, H. Jefferson Powell, Don R. Willett & Ernest A. Young

These are interesting times for the judiciary. Tackling questions of judicial independence, the balance of powers, judicial selection methods and more, a panel of Duke Law School faculty and alumni judges joined Dean David F. Levi recently to discuss the State of the Judiciary. Here’s what they had to say.

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Whether, When, and What to Write: Federal Judges and Opinion Writing

by D. Brock Hornby

Why do circuit judges write opinions? In the third of his “Imagined Conversations” series, Judge Hornby explores judicial opinion writing through characters who represent the full spectrum of the legal profession and judiciary. Written opinions aren’t required by the Constitution, statute, or rules, his characters note, but they have become a well-entrenched tradition. A single opinion for a panel of circuit judges helps build the stature of the court as an institution. To be sure that everyone on the panel agrees with what’s said, that opinion pretty much has to be in writing. Three other reasons conventionally are given: to impose an intellectual discipline on the judges in reaching their decisions; to tell the parties and their lawyers in that particular dispute the outcome and the reasoning (although that could be done orally in the courtroom); and to announce the law to other judges, the bar, law professors, and the interested citizenry.

Nice Try: When Contracts Seek to Preempt Judicial Discretion

by J. Travis Laster & Kenneth A. Adams

Contracts can lead to litigation. It’s standard for drafters to anticipate litigation by including in a contract rules for interpreting it. That’s why contracts usually specify a governing law. And a contract might replace default rules governing a claim for breach, for example, by reducing the period for bringing claims. But drafters also use several techniques to try to control how a court interprets a contract. This article considers each technique and how courts have reacted or might react.

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A Clash of Constitutional Values: When Should Trial Judges Consider Constraining a Defendant’s Right to Self-Representation?

by Stephen C. Leckar

How should a trial judge respond when a defendant whose speech, deportment, or writings suggest seriously disturbed ideation requests to proceed pro se? To date, the Supreme Court has not “prescribed any formula or script to be read to a defendant who states that he elects to proceed without counsel.” This article addresses the intersection between the constitutional principles governing competency in general: the right of the defendant to self-represent and the countervailing right of the state to limit that freedom in those circumstances where a defendant’s competency to self-represent is dubious. The article also offers guidelines that can be used by trial courts adjudicating these delicate situations and by appellate courts reviewing trial judges’ decisions.

Bold and Persistent Reform: The 2015 Amendments to the Federal Rules of Civil Procedure and the 2017 Pilot Projects

by Jeffrey S. Sutton & Derek A. Webb

New types of cases, new ways of gathering and preserving evidence, and an ever-burgeoning caseload constantly add unanticipated stresses to the judicial system. To keep up, district courts must be vigilant in updating the way they handle their case load. Just as a “lumberjack saves time when he takes the time to sharpen his ax,” district courts must continually refine their approaches to stay on top of a daunting docket. Two tools offer help: the 2015 amendments to the Federal Rules of Civil Procedure and the 2017 pilot projects authorized by the Judicial Conference of the United States to test other initiatives designed to improve the efficiency and fairness of civil litigation.

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Departments

BRIEFSBRIEFS

Securing courts and judges

by William Raftery

BOOK REVIEWBOOK REVIEW

Out-of-control policing?

by Lee Rosenthal

LASTLYLASTLY

Keeping the balance through changing tides

by Stewart Walz