Friday, July 9, 2010
Countering the Majoritarian Difficulty, 96 Va. L. Rev. 719 (2010), by Professors Amanda Frost (American) and Stefanie Lindquist (Texas), is now "in print" at the Virginia Law Review's website. Here's the abstract:
Most state court judges are elected to office, and thus must be attentive to voter preferences just like other elected officials. Critics of judicial elections fear that subjecting judges to majoritarian pressures jeopardizes the rights of disfavored groups and undermines the rule of law, and accordingly call for their abolition. The reality, however, is that judicial elections are firmly entrenched in thirty-eight states, and thus appear to be a permanent part of the legal landscape.
This article suggests that the so-called “majoritarian difficulty” posed by elected judges can be tempered by regular interactions with appointed, life-tenured federal judges, who are better insulated from public opinion. By constitutional design, the federal courts work closely with their state counterparts, overseeing state court decisions and sharing jurisdiction over questions of both state and federal law. As a result, federal courts have the potential to offset majoritarian influences on state courts by reviewing state court decisions, issuing binding and persuasive precedent on questions of federal and state law, and providing state courts with political cover for unpopular decisions. Most important, litigants can often frame their cases to get into federal court when they fear that an elected state court judge would be likely to rule against them.
After describing the important role that federal courts can play in diluting majoritarian influences on elected state court judges, the article then examines empirical evidence suggesting that federal courts are, in fact, more involved in overseeing elected state court judges than their appointed counterparts. The article concludes by asserting that federal courts should assume a more proactive role in mitigating the majoritarian difficulty by taking a state’s judicial selection method into account when making jurisdictional choices.
See also this response in Virginia Law Review's online magazine "In Brief": State Judicial Elections and the Limits of Calibrating Access to the Federal Courts, by Michael Solimine (Cincinnati).
Thursday, July 8, 2010
Tuesday, July 6, 2010
Emery G. Lee III (Federal Judicial Center) and Thomas E. Willging (Federal Judicial Center) have posted "Attorney Satisfaction with the Federal Rules of Civil Procedure: Report to the Judicial Conference Advisory Committee on Civil Rules" on SSRN.
The abstract states: "
Prof. Ben DePoorter's essay, Law in the Shadow of Bargaining: The Feedback Effect of Civil Settlements, 95 Cornell L. Rev. 957 (2010), is now "in print" at the Cornell Law Review's website. Here's the abstract:
Lawmakers, courts, and legal scholars often express concern that settlement agreements withhold important information from the public. This Essay identifies, to the contrary, problematic issues involving the availability of information on nonrepresentative settlements. The theoretical and empirical evidence presented in this Essay demonstrates that, despite the widespread use of nondisclosure agreements, information on settlements is distributed both inside and outside legal communities; the information reaches actors through various channels including the oral culture in legal communities, specialized reporters, professional interest organizations, and media coverage. Moreover, information on private settlement agreements circulates more widely if the agreed compensation in a given settlement exceeds the expected value of the claim at trial. For example, professional organizations highlight novel settlements that are strategically important to lawyers, and special interest groups bring attention to extravagant settlements that are most likely to induce legislative action.
The selective availability of information on outlier settlements increases the potential impact of settlement agreements. For instance, in tort disputes, individual settlement concessions make it harder for similarly situated defendants to deflect forthcoming claims. Ambitious trial lawyers will use prior settlements as minimum bargaining thresholds. Plaintiffs in future cases become more demanding and more reluctant to accept settlements below what others have agreed to in prior, analogous settlements. Moreover, due to their noncoercive nature, settlements may frame the normative outlook on particular claims or disputes. Consequently, settlement trends may become normative benchmarks to judges and juries that seek to reinforce such valuations in settlement conferences or trials. The settlement dynamics identified in this Essay provide a novel inroad for possible research on the evolution of remedies and damages in various areas of law.
(Hat Tip: Larry Solum)