As of 12/4/2013 5:34:08 AM
Dissatisf w/ Admin of Justice
Causes of Professional Dissatisfaction with the Administration of Justice
Popular dissatisfaction with the administration of justice has a long, indeed ancient, pedigree. Those busily engaged in making any particular justice system work are likely to have different perspectives. They are familiar with present reality. They understand the purpose and value of practices that seem questionable to outsiders. They have stakes in maintaining the system ? acquired professional skills that confer advantage, distaste for the work and uncertainty involved in change, and a psychological need to believe in the value of what they do. In some ways these differences lend interest to professional dissatisfaction with any entrenched system. This seminar will afford an opportunity to explore a wide range of shortcomings and failings in the systems we know and more-or-less love as perceived by contemporary users. The ambition is to enlist students who are interested enough in some particular topic to assume the lead role in educating the rest of us.
The subjects of inquiry will depend on student choice. Lawyers, and to some extent judges, express dissatisfaction with many relatively specific incidents of procedure. On the civil side, federal pleading has been stirred up to a point that befuddles almost everyone. Discovery has produced complaints from the beginning, and is a perpetual subject of reform large and small. Summary judgment has been characterized as inefficient, unfair, and unconstitutional. "Managerial judging," as embraced in a range of pretrial practices, has become accepted in ways that may reflect poorly on the litigating bar. Offer-of-judgment practice ? more nearly the relative lack of it ? produces regular calls for reform (game theory anyone?). Class actions have moved off the front pages, but deserve continued attention. Similar concerns can be identified on the criminal side, if anyone cares to work there.
Larger topics also are fair game. It has been some number of years since it was fashionable to wonder whether the right to due process might at some point of convoluted legal (or even factual) complexity trump the right to jury trial. Election of judges in many state court systems has returned to become a topic of popular as well as professional attention. The grounds and procedures for recusing a judge from participation in a particular case have come up for renewed consideration.
Topics that seem narrowly technical also are open, though it would take a brave soul to confess much interest. The rules of appeal jurisdiction have important effects on the strategy and opportunities of litigants, and also on the effective power of trial judges.
After the seminar-election period closes, I will ask enrolled students to meet with me in a group, for no more than an hour and with no advance assignment. It is important to get focused before summer begins.