EDITOR’S NOTE
A thank you, and an invitation
by John Anderson
BRIEFS
Dining with the Justice, trouble for the social judge, mandating education for judges, jailhouse snitches, and more.
THE STORIED THIRD BRANCH
‘A living example of what we want our judges to be‘
by John G. Koeltl
Neutral rulemakers
by John K. Rabiej
A considerable number of state judges are stepping away from the bench and their chambers in order to interact with the public through judicial outreach activities. Why? We execute a nationwide survey of state appellate court judges to learn more about this increasingly time-consuming part of today’s judicial work. We find overwhelming support for judicial outreach across the states, and we discover that judicial outreach efforts are very diverse.
The American Law Institute published the Restatement of Employment Law in 2015, its first publication focusing on this area. It is a sharp, concise, and comprehensive overview of employment law. Some of its highlights are noted here, including its discussions of employment contracts; the tort of wrongful discharge in violation of public policy; defamation, wrongful interference, and misrepresentation; employee privacy and autonomy; employee obligations and restrictive convenants; and remedies.
The global war on terrorism has increased the attention paid to the “secret” courts responsible for overseeing and approving covert action. The United States Foreign Intelligence Surveillance (“FISA”) Court is a U.S. federal court established in 1978 to oversee requests by federal law enforcement agencies for surveillance warrants against suspected foreign intelligence agents. The FISA Court’s work has expanded and evolved with the times. The United Kingdom’s counterpart to the FISA Court, the Investigatory Powers Tribunal (“IPT”), established by the Regulation of Investigatory Powers Act, has the power to hear complaints arising form the government’s surveillance activities, including the activities of the U.K.’s secret and security services, MI5 and MI6. Both nations have also developed procedures to govern the use in ordinary courts of evidence, including evidence obtained through or pertaining to covert surveillance activities.
The European Legal Institute (ELI) works to formulate laws and codes that could be adopted in member states, thus contributing to the harmonization of law among the European countries. One current project is developing a set of rules, or code, of civil procedure. Among the important issues are — no surprise to U.S. law people — jurisdiction over foreign parties, notice requirements, pleading, and joinder of claims. Most sensitive — again no surprise — is the question of pretrial discovery, including depositions and production of documents. Indeed, the subject is so sensitive that in the ELI project the process is called “access to evidence” rather than “discovery.”
Suppose a lease prohibits “dogs, cats, and other pets.” A tenant who knows law might argue that a python can slither around the prohibition because a snake is not “of the same kind” as a dog or cat; it’s not a (take your pick) quadruped, mammal, furry animal, or animal that damages residential property. Technically, the tenant would be invoking the doctrine, or canon, of ejusdem generis: General words, when combined with specific items or examples, apply only to things of the same kind or class as the specific things. Now let me ask whether you think the landlord intended to allow a python. Put differently, is the apparent meaning limited to one of the four classes just listed? I suspect that my answer is the same as yours: no. And that brings us to the trouble with ejusdem generis.
The following excerpt is from an article written by the Hon. Simon H. Rifkind, published in August 1950, in the 34th volume of what was then the Journal of the American Judicature Society. Rifkind had recently returned to private practice after serving on the U.S. District Court for the Southern District of New York. In this excerpt, Rifkind argues that sensational trials pit two “great constitutional rights” against each other: the right of freedom of the press and the right to due process of law. Reporters play an important political and social role in informing the public about the courts. But by reporting on trials, they may also influence juries and the judicial process. Rifkind suggests that the bench and bar should work with the media to ensure that the freedom of the press does not impede courts from providing defendants with fair, unbiased trials.
POINT-COUNTERPOINT
Attorney Michael Lynn and Judge Andrew Hurwitz discuss the pros and cons of expanding mandatory disclosure early in litigation.
BOOK REVIEW
Attorney Michael Mazzone writes about Tara Smith’s book, Judical Review in an Objective Legal System. > Download the pdf
DOS AND DON'TS
A judge’s advice for lawyers in a changing world.
by Huey Cotton
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