Saturday, January 2, 2010

New York Times Editorial on Managing the Increasing Number of Pro Se Litigants

New Hampshire Chief Justice John T. Broderick, Jr. and California Chief Justice Ronald M. George published an OpEd in the New York Times, entitled "A Nation of Do-It-Yourself Lawyers," regarding handling the increasing number of pro se litigants.  In addition to increasing access to counsel, the Chief Justices discussed the idea of unbundling legal services and permitting lawyers to engage in "limited scope representation" by representing the client in only part of the case.

The Chief Justices point out that: 

"some lawyers have expressed concern that limited legal representation will encourage litigants to dissect their cases in an effort to save money, sacrificing quality representation that the litigant might otherwise be able to afford. We have also heard the argument that by offering too much assistance to self-represented litigants, the courts themselves are undermining the value of lawyers and the legal profession. Apparently, some are concerned that the court system will become so user-friendly that there will be no need for lawyers."

However, the Chief Justices expressed their view that the benefits to permitting limited scope representation might outweigh any of these criticisms, particularly in light of the increasing inability of many litigants to afford comprehensive legal services:

"Litigants who can afford the services of a lawyer will continue to use one until a case or problem is resolved. Lawyers make a difference and clients know that. But for those whose only option is to go it alone, at least some limited, affordable time with a lawyer is a valuable option we should all encourage.  In fact, we believe that limited-scope-representation rules will allow lawyers — especially sole practitioners — to service people who might otherwise have never sought legal assistance. We also believe that carefully drafted ethical rules allowing lawyers to handle part of a case give the legal profession an opportunity to help the courts address the ever-growing number of litigants who cross our thresholds."


January 2, 2010 in In the News, State Courts | Permalink | Comments (0) | TrackBack (0)

Thursday, December 31, 2009

Another AALS Panel of Interest: "Revisiting Discovery" (January 8)

Readers attending the Association of American Law Schools (AALS) annual meeting next week in New Orleans may be interested in the AALS Civil Procedure Section's program, Revisiting Discovery, which is co-sponsored by the Litigation Section. The panel is scheduled for Friday, January 8 from 10:30 a.m. - 12:15 p.m. Here is the description:

Since the Federal Rules of Civil Procedure were adopted in 1938, discovery has played a central role in the American litigation system. Indeed, for many years, pleading was considered of little importance compared to discovery. But as courts and commentators have focused on the costs of discovery, there have been multiple efforts--with varying degrees of success--to rein in discovery. One recent example has been the apparent tightening of pleading standards in Twombly, a tightening which the Court justified in part by nothing the high cost of discovery in complex antitrust actions. In light of Twombly and other developments, the time is right for a renewed focus on the relationship between discovery and other aspects of the litigation system, including pleading and summary judgment. The need for further consideration of the role of discovery in the litigation process as a whole led to our call for papers. The papers selected will be the foundation of our program.

Speakers include:

Steven S. Gensler, University of Oklahoma College of Law
Lonny S. Hoffman, University of Houston Law Center (moderator)
Suzette M. Malveaux, The Catholic University of America Columbus School of Law
Adam N. Steinman, University of Cincinnati College of Law

December 31, 2009 in Conferences/Symposia, Discovery | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 29, 2009

AALS Panel of Interest: "The Future of Summary Judgment" (January 9)

Readers attending the Association of American Law Schools (AALS) annual meeting next week in New Orleans may be interested in the AALS Litigation Section's program, The Future of Summary Judgment, which is co-sponsored by the Civil Procedure Section. The panel is scheduled for Saturday, January 9 from 10:30 a.m. - 12:15 p.m. Here is the description:

Over the past forty years, summary judgment has played an increasingly prominent role in federal and state civil litigation. Some hail the expanded availability of summary judgment as promoting efficiency, preserving judicial resources and relieving pressure on overcrowded dockets. Others criticize the current state of summary judgment practice as promoting needless pre-trial transaction costs, undermining the role of jury trials, and disadvantaging employment discrimination, civil rights and other plaintiffs. Recent proposed amendments to Rule 56 have further fueled the debate about the proper role for summary judgment. In addition, some think the U.S. Supreme Court’s May 2009 decision in Ashcroft v. Iqbal will impact the future role of summary judgment and accelerate pre-trial dispositive motion practice by increasing the number of cases dismissed at the pre-answer motion stage of litigation. Speakers will address a range of issues relating to the future of summary judgment, such as the evolution of federal summary judgment law and practice since the 1970s, whether the trans-substantive model for summary judgment remains effective or normatively preferable, the proposed changes to Rule 56, and whether the Iqbal decision will affect the role of summary judgment.”

Speakers include:

Ronald G. Aronovsky, Southwestern Law School (moderator)
Edward J. Brunet, Lewis and Clark Law School
Stephen B. Burbank, University of Pennsylvania Law School
Steven S. Gensler, University of Oklahoma College of Law
Linda S. Mullenix, The University of Texas School of Law
Adam N. Steinman, University of Cincinnati College of Law
Suja A. Thomas, University of Illinois College of Law

December 29, 2009 in Conferences/Symposia | Permalink | Comments (0) | TrackBack (0)

Monday, December 28, 2009

Fu and Cullen on Public Interest Litigation in China

Professors Hualing Fu (University of Hong Kong Faculty of Law) and Richard Cullen (Monash University) have posted "The Development of Public Interest Litigation in China" on SSRN.

The abstract states:

This paper studies the reception and development of public interest litigation in China. In this paper, public interest litigation (PIL) is defined broadly to include a judicial process, including court-based mediation and adjudication, in which grievances of a general nature, normally in relation to social and economic rights, are litigated in pursuit of legal remedies against government departments, public authorities, and monopoly enterprises. Since its reception in China in the middle of the 1990s, PIL has become more institutionalized. This paper identifies five changes in PIL in China: 1) from spontaneous action to institutionalization; 2) from passivity to aggressive defence; 3) from litigation to networking; 4) from using law as shield to using law as sword; and 5) from case handling to policy changes. Lawyers have become more demanding, aggressive and challenging and the current pushback by the government in restricting aggressive public interest lawyering is, in part, a response to the growth of PIL in China in the past 20 years.


December 28, 2009 in International/Comparative Law, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, December 27, 2009

Interveners at the Supreme Court of Canada

Benjamin Alarie and Andrew James Green have posted Interventions at the Supreme Court of Canada: Accuracy, Affiliation, and Acceptance to SSRN.
Do interveners matter? Under Chief Justice McLachlin the Supreme Court of Canada has allowed an average of 176 interventions per calendar year and interveners have cumulatively made submissions in half of the cases heard by the Court. This level of activity suggests that interveners are doing something. But what is it that they are doing?

In the abstract, there are at least three functions that the practice of intervention might perform. First, hearing from interveners might provide objectively useful information to the Court (i.e., interveners might promote the “accuracy” of the Court’s decision-making). A second possibility is that the practice of intervention allows interveners to provide the “best argument” for certain partisan interests that judges might want to “affiliate” with. A third possibility is that interventions are allowed mainly (if not only) so that intervening parties feel they have had their voices heard by the Court and by the greater public, including Parliament, regardless of the effect on the outcome of the appeal (i.e., the Court might be promoting the “acceptability” of its decisions by allowing for an outlet for expression).

It is disconcerting that until now the effects of interventions on the decision-making of the Supreme Court of Canada have not been systematically explored through empirical analysis. A growing body of literature has examined the role of amicus curiae at the Supreme Court of the United States. To date, however, the related literature in Canada is slim and, to the extent it exists, does not deploy the empirical methods necessary to test independently for the influence of interveners on the decisions of individual judges. This work fills this gap in the existing literature and expands our collective understanding of the consequences of the practice of intervention at Canada’s highest court. We find evidence that interveners matter more than many observers might expect.


December 27, 2009 in International/Comparative Law, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)