Wednesday, December 4, 2019

2020 Pound Institute Civil Justice Scholarship Award

The Pound Civil Justice Institute has announced the winners of its 2020 Civil Justice Scholarship Award. From the announcement:

The Pound Civil Justice Institute has chosen the recipients of the Institute’s 2020 Civil Justice Scholarship Award: Professor Zachary D. Clopton (Northwestern) and Professor Adam N. Steinman (Alabama).

Professor Clopton, of Northwestern Pritzker School of Law, is honored for his article Procedural Retrenchment and the States, 106 Calif. L. Rev 411 (2018), in which he evaluated possible state-court and state-enforcement responses to the Roberts Court’s recent procedural decisions, and suggested further interventions by state courts and public enforcers that could offset the recent regression in access to justice.

Professor Steinman, of The University of Alabama School of Law, is honored for his article Access to Justice, Rationality, and Personal Jurisdiction, 71 Vand. L. Rev. 1401 (2018), in which he analyzed the United States Supreme Court’s recent decisions on personal jurisdiction in civil litigation, examined the situations where personal jurisdiction doctrine is most likely to threaten access to justice and the enforcement of substantive law, and proposed ways to work within the Court’s case law to preserve meaningful access and enforcement.

High Distinction for an Article: The Institute also recognized an article for high distinction among the nominations received: The Shifting Sands of Employment Discrimination: From Unjustified Impact to Disparate Treatment in Pregnancy and Pay, 105 Geo. L. J. 559 (2017), by Professor Deborah Brake, of the University of Pittsburgh School of Law. In an interesting and well-written article addressing one of the most frustrating aspects of employment discrimination law, pay discrimination, Brake argues for using recent developments in the law of pregnancy discrimination to shift the understanding of discriminatory intent in the jurisprudence of equal pay.”


On a personal note, I’m very grateful to be chosen for this award, and to be recognized alongside Zach and Deborah as well as last year’s honorees Alexandra Lahav, Suja Thomas, and Myriam Gilles. Congrats to all, and sincere thanks to the Pound Civil Justice Institute!

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Kudos to the two Pound prize winning essays. Without intending to criticize their achievements, I think we should recognize that they evidence deep failures in access to justice in American civil procedure. They counsel small steps when big ones are needed: litigation when only legislation can work.

"Procedural Retrenchment and the States" finds remarkable that the Roberts Court is highly interested in civil procedure. Why is that remarkable? When it comes to civil procedure, since the Rules Enabling Act of 1934, the Supreme Court has had the role of the legislature. The Court would be derelict in its legislative duties if it were not highly interested. Yet the article counsels “rather than bemoaning the Roberts Court’s decisions to limit court access … we instead might productively focus on the options open to state courts and public enforcement.” The path proposed perpetuates a proliferation of different rules among states and federal courts and thus hinders easy access and promotes the sporting theory of justice that Pound decried.

"Access to Justice, Rationality, and Personal Jurisdiction" examines the negative effect on access to justice of the Court’s recent judicial decisions on jurisdiction. It calls for more judicial decisions as a work-around solution. It does not consider bright-line jurisdictional rules that legislation might bring and that are usual in most parts of the planet. Ironically, Justice Jackson in 1944, just before, in his absence the Supreme Court decided International Shoe, pointed to the Full, Faith and Credit—the Lawyer’s Clause of the Constitution, as one legislative route to rational jurisdiction.

Access to justice in the United States is a scandal: the ABA supported World Justice Project’s Rule of Law Index rates American civil justice 94th out of 125 systems in whether people can access and afford civil justice. We won’t overcome that deficiency until we give more attention to legislation such as the ignored ABA Model Access Act draws and less attention to the latest Twombly case.

Posted by: James R Maxeiner | Dec 5, 2019 8:50:08 AM

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