Volume 101 Number 4 : Winter 2017

Equal Opportunity? Increasing Diversity in Complex Litigation Leadership

Does jurisprudence prohibit judges from considering diversity when appointing lawyers to lead roles in complex litigation? Here’s a legal strategy judges can use to help give women and minority lawyers an equal chance at leadership in class actions and MDLs.

Download the PDF

The Changing Science on Memory and Demeanor – and What It Means for Trial Judges

Unless my experience of trying hundreds of federal civil and criminal jury trials in five federal districts is idiosyncratic, in virtually every case, a verdict turns on the perceived accuracy of witness memory and demeanor. This also has been true in my experience with bench trials. The credibility of witnesses is front and center in civil and criminal jury trials as well as evidentiary hearings. Counsel’s ability to successfully attack the demeanor and memory of adverse witnesses is often a key turning point in the results. However, trial lawyers get little or no help from current pattern instructions on how juries should evaluate witness credibility. So, I suggest trial judges spring into action and do something. That something follows.

Download the PDF

Speaking, Listening, and the Rule of Law: Free Speech on Campus

These are challenging times on college campuses. Administrators and students are grappling with efforts to protect free speech and academic freedom while also setting standards of civility, ensuring student safety, and maintaining their commitment to the core values of a university, including opposition to racism and bigotry. In August 2017, David F. Levi, dean of Duke Law School and the former chief U.S. District Judge for the Eastern District of California, delivered convocation remarks to the entering class of Duke University graduate and professional students, offering perspective on these challenges and the role of the rule of law — and he shared his hope for the future, embodied in the young people who filled Duke Chapel to hear his remarks. His comments follow.

A Brief Moment in the Sun: The Reconstruction-Era Courts of the Freedman’s Bureau

In the immediate post-Civil War South, violence and discrimination against black people was the norm. In order to combat overt and state-sanctioned forms of discrimination, the federal government stepped in by rapidly expanding the judiciary through the Freedmen’s Bureau courts. These ostensibly temporary institutions represented a dramatic growth of federal judicial power — perhaps reaching the broadest jurisdiction that federal courts have had in American history. These federal tribunals reached deep into legal areas that had long resided within the sphere of state and local courts and aimed to advance equal justice in disputes over property, contracts, wages, labor conditions, family matters, and crimes inflicted on the formerly enslaved men and women throughout the South.

How Lockhart Should Have Been Decided (Canons Are Not the Key)

The case is Lockhart v. United States, 136 S. Ct. 958 (2016). It’s fascinating for the debate over conflicting canons of construction, the import of related statutes, and the value of legislative history. Think of it as a perfect vehicle for examining what seems to me the Court’s overreliance on textual methods of interpretation, and especially on certain canons. In hundreds, if not thousands, of cases, courts have faced the kind of syntactic ambiguity that caused trouble in Lockhart. The solution does not typically lie in parsing and picking between textual canons. Courts must try to ground their decisions in something less mechanical when grappling with this recurring ambiguity.

Download the PDF

Going, Going, But Not Quite Gone: Trials Continue to Decline in Federal and State Courts. Does it Matter?

Trials, particularly jury trials, once played a central role in the American legal system. No longer. While trial remains a theoretical possibility in every case, the reality is quite different. Trials occur rarely, typically only in the most intractable disputes. This article documents and quantifies the continuing disappearance of trials. It confirms that today a trial is very much the exception, rather than the rule, regardless of jurisdiction (federal or state), type of case (criminal or civil), type of trial (bench or jury), or type of claim (contract, tort, etc.). Click below for article PDF; click here for complete appendices.

Download the PDF