Justice Ruth Bader Ginsburg and the Evolution of General Jurisdiction

A guest post by Lawrence Friedman

Among the potential nominees for the U.S. Supreme Court vacancy created by Justice Ruth Bader Ginsburg’s passing was Barbara Lagoa, currently a judge on the U.S. Court of Appeals for the Eleventh Circuit. Like the eventual nominee, Seventh Circuit Judge Amy Coney Barrett, press reports labeled Lagoa a “conservative jurist,” supported by statements from progressive organizations like Alliance for Justice, which asserted that Lagoa’s decisions “raise concerns that she will side with the wealthy and powerful at the expense of everyday Americans.”

One problem with this statement is its premise—namely, that cases in which corporate interests prevail necessarily are the result of a judicial predisposition, rather than the application of controlling legal principles to the facts at hand. Though the results in some cases may reflect motivated reasoning, it remains that judges, both state and federal, in the main seek to honor their oaths to apply the law to the facts without fear or favor. There may be no better example of this commitment to the evenhanded administration of justice than Justice Ginsburg herself, as she was responsible for a series of civil procedure decisions over the past decade that effectively benefited corporate interests at the expense of individuals.

To be sure, it is unlikely you will find Ginsburg’s decisions on the principle of general jurisdiction in any compilation of her most important work as a judge. For example, a new collection curated by Corey Brett Schneider for his Penguin Liberty imprint, Decisions and Dissents of Justice Ruth Bader Ginsburg, features her majority opinions, dissents, and appellate briefs from cases involving gender equality and women’s rights, reproductive freedom, and voting and civil rights—with nary a mention of the pathmarking decisions on federal civil procedure she consistently wrote during her time on the high court.

Continue reading “Justice Ruth Bader Ginsburg and the Evolution of General Jurisdiction”

IAALS seeks new CEO

The Institute for the Advancement of the American Legal System at the University of Denver (IAALS), one of the premier legal reform organizations in the United States, is seeking a new CEO. The full details can be found here.

As a proud alumnus of, and occasional ongoing contributor to, the IAALS family, I can confirm first-hand that this is a remarkable organization and a remarkable opportunity. It will take an equally remarkable person to take IAALS into the 2020s and beyond, but I encourage all qualified people to give it serious consideration.

Federal appellate courts are fully staffed for the first time in 43 years

Ballotpedia reports on Administrative Office of the U.S. Courts statistics, showing that every one of the 179 judgeships on the U.S. Courts of Appeals has been filled, with no pending vacancies. It is the first time since 1977 that there are no vacancies at this level.

There are still 70 district court vacancies, representing more than 10% of the total judgeships at that level. But the courts are slowly working their way back to the judicial capacity to which they are statutorily authorized.

Judicial Conference to push for legislation and funding to assure safety of federal judges

In the wake of the horrific shooting of Judge Esther Salas’s son and husband at her New Jersey home last month, the Judicial Conference of the United States has resolved to seek aggressive legislation and funding to better protect federal judges and their families. The Judicial Conference’s press release, which lays out its proposals, is here.

Let’s hope that Congress acts quickly to provide the necessary resources.

In Memoriam: Stephen Susman

This morning brought the sad news that renowned trial lawyer Stephen Susman has passed away from the novel coronavirus. He was 79.

Steve was widely known for his remarkable trial skills, and as a founder of the Houston litigation firm Susman Godfrey. But his professional energy and interests extended far beyond the courtroom. He was deeply active in efforts to improve the civil justice system and to preserve the civil jury trial. A few years ago, he founded the Civil Jury Project at NYU Law School for that express purpose, bringing together lawyers, judges, jurors, and scholars to study and advocate for the importance of civil juries.

I first met Steve about ten years ago, at the Duke Conference of the federal Advisory Committee on Civil Rules. As judges and lawyers struggled to determine the best way to rein in discovery costs, Steve pointed out how much can be done when opposing counsel simply act like adults and professionals. As proof, he submitted a two-page checklist of discovery agreements that he claimed to use in every case. It was a straightforward and sensible list, agreed to by counsel in advance, covering issues like the order of depositions and the labeling of exhibits — the type of things that would naturally keep discovery within reasonable limits and avoid pointless cost to the client. My favorite item remains the very first on the list:

As to any discovery dispute, the lead lawyers will try to resolve [it] by phone and no one will write letters to the other, including letters attached as pdf’s to emails and phone calls.

The entire checklist was so simple, and yet so brilliant, that I immediately sought permission to share it with my law students. (Steve graciously granted that permission in short order.) I still assign the checklist to my law students as a paradigm example of how a lawyer can simultaneously be a zealous advocate of his client and a responsible officer of the court.

About three years ago, Steve asked me to join the Civil Jury Project as an academic advisor, an invitation for which I was both honored and grateful. It was a pleasure to see him in action, with his relentless energy and good cheer, as he brought together jurors and lawyers at “jury improvement luncheons” across the country, and held programs for scholars to share their insights into the jury system.

Our thoughts are with Steve’s family today. His passing is a profound loss for the entire legal community.

 

 

Coming soon to your local fairground: jury trials?

Court administrators have had to act nimbly during the entirety of the coronavirus pandemic, in order to balance public safety with the requirements of due process. Now, some county courts in Oregon are considering yet another creative solution: holding jury trials at local fairgrounds in order to meet the requirements of social distancing.

The fairgrounds are already owned by the respective counties where trials might be held. They are easy to get to, have ample parking, and offer wide-open and largely unused buildings, making them an attractive option for courts. Still, there are many logistics that have yet to be worked out:

So far in Deschutes County, court officials have developed lists of what will be needed at the fairgrounds. On the to-do list is to look at the costs of renting tents and other furnishings like chairs, tables, maybe a riser to put a bench up on.

Heating, air conditioning and restrooms will be needed to keep people comfortable, because jurors need to be focused only on listening to the evidence, Ashby said. Secure and private rooms are needed for lawyers to meet with clients and jurors and judges to deliberate. Boxes and boxes of computer and recording equipment must be relocated and tied in with the county IT system and the fairgrounds PA system. Security is another primary concern.

“Our number one priority is making the courthouse as safe as humanly possible,” Ashby said. “Competing with that are statutory timelines, which require us to try cases, the most pressing of which are in-custody criminal defendants.”

Plans like this are born of necessity, but it will be fascinating to see what courts learn from the experience, and how some of these options might influence court administration after the pandemic subsides.

Texas holds first Zoom jury trial

Yesterday, Texas held the first jury trial to be conducted exclusively through Zoom videoconferencing. The one-day summary jury trial was also livestreamed on YouTube.

This represents a major development, given that every other jurisdiction has simply postponed jury trials until courthouses reopen.  And judges are increasingly opening to the idea of remote trials in some form. On the other hand, some judges remain steadfastly opposed to trials outside the physical courtroom, and with courthouses beginning to reopen in the coming weeks, it remains to be seen how common videoconference trials will become.

State courts extend and explain COVID-19 protocols

Yesterday, the Supreme Court of Colorado and the Supreme Judicial Court of Massachusetts respectively sent letters to their registered attorneys, informing them of recent measures taken to address the COVID-19 pandemic. Massachusetts will be extending its courthouse closures for most matters, including all jury and bench trials, while tolling statutes of limitations through the end of May. Colorado has delegated considerable administrative decisionmaking authority to the chief judge of each judicial district, in acknowledgement of the different circumstances and available resources in each district.

New England Law seeks Teaching Fellow

My institution, New England Law Boston, is hiring a full-time Teaching Fellow for a two-year term starting this August. The fellow will teach three courses a year — one or two of which will cover core first-year topics. The fellow will be an integrated member of the full-time faculty.

This is a great opportunity for individuals who are interested in getting into legal academia. New England Law is a great place to work, and our faculty is remarkably supportive of our colleagues as it pertains to teaching, scholarship, or any other aspect of law school life. I encourage interested parties to apply.

The full job posting can be found here.

Judicial Conference authorizes federal courts to hold certain criminal proceedings electronically

Last week, Congress passed the CARES Act, which most notably was designed to give a push to the American economy in the wake of the COVID-19 crisis. Nestled within that Act was a provision that permitted the Judicial Conference of the United States to determine that “emergency conditions due to the national emergency declared by the President with respect to COVID-19 will materially affect the functioning of the federal courts generally.” Such a finding would then permit chief judges of individual federal district courts to temporarily authorize videoconferences or teleconferences in certain criminal proceedings, solely in response to the coronavirus crisis.

The Judicial Conference made that authorization on Sunday, leaving it now to individual districts to determine whether to implement videoconferencing. It is worth noting that the legislation (which was passed with significant input from the Judicial Conference) is relatively narrow, and applies only to the current COVID-19 emergency. Moreover, the general authorization applies only to certain types of criminal proceedings: in particular, no felony plea or sentencing could be done by video- or teleconference unless the district court makes additional findings that such proceedings (1) cannot be done in person “without seriously jeopardizing public health and safety”, and (2) that “there are specific reasons that the plea or sentencing in that case cannot be further delayed without serious harm to the interests of justice.”

This is an entirely practical step, representing collaboration between Congress and the courts to protect the efficient operation of the criminal justice system. Whether it will open the door for further use of videoconferencing in non-emergency situations, however, is very much unsettled. And the current legislation has drawn criticism in some circles that it reduces much-needed transparency in criminal justice.