State Litigation Research Articles

Judging Rules, Ruling Judges

The Federal Rules of Civil Procedure currently govern all federal and, indirectly, most of state litigation in the United States. There are deep flaws in the process by which those Rules are framed and amended. Since the original Rules were proposed and adopted in the 1930s, Congress and the courts have changed the process for amending the Rules and the composition of the groups responsible for those amendments. Once a flat, two-step process in which lawyers and academics proposed rules for approval by judges, the system now has twelve layers and is dominated by judges. Three unfortunate consequences flow from these changes. First, increased judicial responsibility for rulemaking involves the federal judiciary in unnecessary clashes with Congress. Second, the proliferation of steps makes the amending process unwieldy and unnecessarily slow. Third, changes from a trial-dominated to a settlement-dominated litigation system make judges less skilled in assessing the effect of proposed changes. This essay summarizes the steps that took us to the present system, explaining the ill consequences of successive well-intentioned and apparently minor changes. It then proposes an alternative. The essay argues for eliminating most of the present layers of process, and for returning to a model in which lawyers take the lead in proposing changes, with judges approving or disapproving the final product.

Preempting Unintended Consequences

There is something called the “Law of Unintended Consequences.” Who enacted this law, who enforces it, and its exact scope are obscure. However, from time to time it manifests itself, most recently having made an appearance in some of the fallout from the Private Securities Litigation Reform Act of 1995 (“the Act”). One unintended or, perhaps more accurately, unforeseen consequence of the Act has been the increasing appearance of the Milberg, Weiss firm as plaintiffs’ counsel in securities class action litigation. This firm, seen by many advocates of reform as the incarnation of all they dislike in class litigation, has become an ever more commanding presence on that scene. Milberg, Weiss has extraordinarily competent and experienced lawyers in class action litigation who have been extremely successful in securing substantial verdicts and procuring huge settlements. Their increased ascendancy and heightened visibility in the class action arena cannot be a source of joy to the promoters of the Act. The reason for the firm’s rise is very simple: One consequence of the Act has been the lengthening of proceedings. Milberg, Weiss, with its deep pockets and vast experience, is better able than most other smaller plaintiffs’ firms to sustain this lengthy process without suffering crippling financial strain. Another unintended consequence of the Act was the initial migration of securities litigation to the state courts. Most states do not have laws that impose the stringent pleading requirements of the Act, set the hurdles so high in prevailing on fraudulent forecasts, provide for separate and proportionate damages, or place other impediments in the path of success in class actions like those created by the Act. While there initially appeared to be a major move toward state courts, this trend subsequently abated, and at the present writing the pendulum has swung back toward the federal system, both as a proportion of total litigation and in absolute numbers. Not surprisingly, most of the state litigation was initiated in California, largely as a consequence of the fact that

Litigation, School Finance Reform and Aggregate Educational Spending

The United States has traditionally financed elementary and secondary education through property taxation. In the past two decades, litigation in many states has triggered educational reform movements designed to reduce the inequalities in educational expenditures across districts inherent in a property tax financed system. While these movements have been successful in reducing inequalities, there are some who argue that this movement has had adverse affects on the level of educational spending. In this paper, we use a panel data set across all the states from 1970-1990 to examine the role of litigation and educational finance reform in determining the level of education funding in a flexible, dynamic setting. This allows us to analyze the determinants of educational spending and to assess the differential impacts of litigation and reform movements across states. An important finding of our work is that litigation and reform have differential effects across the states, in some cases leading to increases while in other cases decreases in spending.

The Attica litigation

In September of 1971, twenty-nine inmates and ten prison employees were killed at New York's Attica Correctional Facility when state law enforcement agents forcibly regained control. In the two decades since, aborted attempts at criminal prosecution have been followed by a maze of civil litigation in state and federal courts as prisoners, Attica employees, and their estates have sought monetary compensation for injuries, wrongful death, and alleged violations of civil rights. This paper draws together the major litigation stemming from the 1971 Attica events and suggests some implications for law and social control.

Judicial Federalism in Action: Coordination of Litigation in State and Federal Courts

Judicial Federalism in Action: Coordination of Litigation in State and Federal Courts

Supreme Court Decision Making: The Impact of Court Composition on State and Local Government Litigation

This article examines the participation and success rates of state and local governments before the U.S. Supreme Court during 1953-1989. We find that they have experienced greater access to the Court over time, and that they have been winning an increasingly higher proportion of cases when appearing as direct parties, with some interesting variations depending on the type of case and litigants. Time-series analysis indicates that the most important factor in state and local success is the increasingly conservative ideology of the Court from the Warren years to the Rehnquist Court. An exception to improved performance is federalism cases. The findings have implications for the future character of American federalism and the development of a general model of judicial decision making.

Maritime Litigation in the GCC States

Maritime Litigation in the GCC States

INTERACTION BETWEEN DEMAND FOR EDUCATION AND FOR MUNICIPAL SERVICES

In recent litigation in several states it has been contended that a high demand for municipal services impinges on the community's capacity to provide an adequate educational opportunity to its chi...

From Rogers to Rivers: The Rights of the Mentally Ill to Refuse Medication

Many individuals with mental illness wish to avoid psychotropic drugs, a type of treatment that may relieve their symptoms only at the risk of unpleasant, even permanent, side effects. In marked contrast to the widely-held view that most patients may refuse any treatment and that even patients with mental illness may reject other psychoactive interventions such as electroconvulsive therapy and psychosurgery, the courts and legislatures have been slow to recognize any right to refuse psychotropic drugs. This Article demonstrates that many of the justifications offered for forcing patients to take unwanted medications are inadequate and that unless treatment refusals are reviewed outside mental institutions, patients' rights will rarely receive appropriate deference. The author analyzes the federal and state litigation to determine whether the courts have fashioned meaningful relief for the mentally ill. The Article concludes that two recent United States Supreme Court decisions have made it impossible for the federal courts to provide adequate protection. By contrast, several state courts have responded to the needs and rights of patients with mental illness.

Race and peremptory challenges during voir dire: Do prosecution and defense agree?

Recent litigation in state and federal courts in the United States suggests that black prospective jurors may be systematically excluded from sitting on trial juries through the issue of peremptory challenges during the voir dire process. Numerous trial and appellate cases have reaffirmed the importance of excluding prospective jurors without cause through peremptory challenges. An insufficient number of studies have examined peremptory challenge data to determine if a systematic bias against black prospective jurors actually exists. This study analyzes peremptory challenges issued by both prosecution and defense to determine if both adversary parties agree on the proclivity of black jurors to influence a jury verdict in a given direction. The study concludes that both prosecution and defense agree, as evidenced in the issue of peremptory challenges, that black jurors are prone to move a jury toward a verdict of acquittal.

A Symposium on the New Fight for Fluorides: Part I: The New Antifluoridationists: Who Are They and How Do They Operate?

Since Grand Rapids became the first community to adjust the fluoride content of its water supply, individuals and groups have objected to water fluoridation. Early opponents of fluoridation were often members of fringe groups or were associated with the health food movement, were chiropractors, or were Christian Scientists. Once these individuals and groups began exchanging ideas and experiences, national groups were formed for the sole purpose of fighting fluoridation. While most of these organizations lacked sufficient funding or expertise to have much impact outside of the communities where they were based, some national multi-issue organizations appeared that were well funded and that focused on antifluoridation as one of their goals. Through exploitation of society's current phobias about health and disease, these national groups have become increasingly successful in negatively influencing the public about the effectiveness, safety, and economy of community water fluoridation. Their tactics range from community actions aimed at local governmental bodies, to well-organized local referenda, to litigation in state and federal courts, to lobbying state legislatures and the US Congress. Specific legal, community organizational, and political tactics employed by the antifluoride groups are reviewed and classified.

Comparing Environmental Litigation in State and Federal Courts

Comparing Environmental Litigation in State and Federal Courts Werner F. Grunbaum, Werner F. Grunbaum Search for other works by this author on: Oxford Academic Google Scholar Lettie M. Wenner Lettie M. Wenner University of IllinoisChicago Search for other works by this author on: Oxford Academic Google Scholar Publius: The Journal of Federalism, Volume 10, Issue 3, Summer 1980, Pages 129–142, https://doi.org/10.1093/oxfordjournals.pubjof.a037317 Published: 01 January 1980

Comparing Environmental Litigation in State and Federal Courts

Comparing Environmental Litigation in State and Federal Courts

The 1974 Term of the United States Supreme Court

IN CONTRAST to the dramatic events of the summer of 1974, the Supreme Court returned to its position of relative public invisibility. Although there was some continuation of the activism of the late Warren Court, this more conservative court continued its retreat, and was plagued by the inactivity of Justice Douglas. Justice Douglas' stroke had a paralyzing effect on the court by removing the most liberal and most senior justice from court deliberations for significant periods of time. Here the most immediate visible impact was the delaying of the death penalty case until the next term (Fowler v. North Carolina, 422 U.S. 1039). At the end of the term, Douglas' return as an effective member remained in doubta doubt not finally resolved until November 1975 with his retirement. The output of the court was that of marginal change rather than of dramatic new policy initiatives. Reduced to the position of either protesting decisions or concurring with the controlling conservative majority, the minority liberal bloc of Douglas, Brennan, and Marshall attempted to reduce the impact of the changes by means of their written opinions. Since Chief Justice Burger and his ideological associates were able to remove the Supreme Court from many controversies by citing jurisdictional factors such as pending state litigation or failure to exhaust all appropriate administrative or judicial remedies, the federalism issue returned to prominence with the Court deferring to state prerogatives and powers (most notably in criminal prosecutions). The new order is best reflected in three traditionally publicly divisive policyoriented areas which in this term were relatively innocuous. Several reapportionment cases occurred but no new doctrinal ground was broken and in a related case involving the issue of voter eligibility in bond issue elections, the decision was based on the most minimal grounds possible (Hill v. Stone, 421 U.S. 289). In the few labor union cases decided, the major issues were the failure of Black workers to use union grievance procedures which resulted in the dismissals (Emporium Capwell Co. v. Community Org., 420 U.S. 50) and whether an employee accused of theft has the right to union representation when the accusation is made for the purposes of terminating the employee (NLRB v. Weingarten Inc., 420 U.S. 251). In all three cases, the union was upheld with no major extension of any constitutional rtlle.

Res Judicata in Federal Civil Rights Actions Following State Litigation

Res Judicata in Federal Civil Rights Actions Following State Litigation

Power to Stay Federal Proceedings Pending Termination of Concurrent State Litigation

Power to Stay Federal Proceedings Pending Termination of Concurrent State Litigation