Realities Of Litigation Research Articles

Dirty Works: Obscenity on Trial in America’s First Sexual Revolution by Brett Gary

Although the title does not reveal it, Gary’s book employs a biographical approach to the study of how people who embraced modernism challenged the legal gender norms established in the Victorian Age and given potent legal effect through the Comstock Act and similar state legislation. Comstockery was paternalistic in every sense of the word, utilizing the concept of obscenity to protect the moral order of society by regulating sexuality. The legal standard that was used most often to decide obscenity cases was the Hicklin rule, which required only that an object have the potential to corrupt the most susceptible people to be ruled obscene. In the hands of magistrates, customs officials, and postal officials, its use was capricious and extensive.As a cultural historian speaking to legal scholars, political scientists, and legal historians, Gary chronicles the “changes and conflicts around sex and morality in American culture in a booming, ever-expanding marketplace of information and entertainment” from the 1920s into the 1950s (2). He uses “the actions of one particular law firm and one particular lawyer” to show how an older, established fear “of public vulnerability was countered by an equal powerful claim to the public’s right of access” (3). Morris Ernst, a partner at Greenbaum Wolff and Ernst, and associate counsels Alexander Lindey and Harriet Pilpel of the same firm “won signature cases in their larger campaign against” legal suppression of sexual expression and knowledge (3). Representing feminists, birth-control activists, doctors, sex researchers, booksellers, publishers, and novelists, they did a remarkable amount of the heavy lifting required to change the law. Their individual clients included Mary Ware Dennett, the pioneering author of a sex-education manual; Marie Stopes, the author of a path-breaking work extoling women’s sexual pleasure in marriage; Covici and Friede, the American publishers of Radclyffe Hall, author of “the most important English-language lesbian novel” of the period (111); James Joyce, author of the transgressive modernist masterpiece Ulysses; Margaret Sanger, the nation’s foremost birth-control advocate and activist; and Alfred Kinsey, America’s leading sex researcher.Ernst is famous as a leading lawyer for the American Civil Liberties Union (aclu), but, as Gary shows, much of his work took place outside that organization. By shifting the focus away from the organization, Gary sheds new light on how legal and cultural change occurred. His work complements and supplements Leigh Ann Wheeler’s How Sex Became a Civil Liberty (New York, 2012), which explains how the aclu incorporated sexual speech into the freedoms that deserved protection from government. Employing the traditional humanistic methodology of textual analysis, Gary illuminates in great detail how Ernst and his collaborators swayed courts (and sometimes bureaucrats or legislators) to their views. They seldom lost. More than one chapter concludes with the assertion that a judge “rendered a verdict that essentially accepted all their arguments” (286).Gary’s focus is on legal arguments, defense strategies, and trial work—often accompanied by behind-the-scenes maneuvering or publicity campaigns. He treats the briefs as not just legal arguments but also as social and cultural statements, and he views lawyers as creators constrained by the realities of litigation and context. Thus, they downplayed some aspects of their cases to gain a competitive advantage in court. For instance, in defending Dennett they glided past her treatment of masturbation to secure victory, and similarly with Sanger, they strongly pushed for a physicians’ exception to the restriction on importation of contraceptive devises. That decision reinforced the medicalization of birth control.Gary’s work details the emergence of a cultural and legal sexual revolution that set the stage for later developments. Numerous examples show how “Ernst and his colleagues” created “a core body of arguments” deployed “in virtually all of their cases” that “were steadily accepted by the courts,” shifting “the role of the state from one of paternalistic protector of childlike vulnerable citizens to an arbiter of adult marketplaces of knowledge and entertainment” (289).

민사전자소송의 성과와 전망

Ten years have passed since the commencement of the electronic lawsuit on the merits of civil affairs on May 2, 2011. Over the past decade, electronic litigation has dramatically changed the pattern of Korean civil litigation. Electronic litigation has strengthened the people s access to judicial services, changed trial procedures quickly and efficiently, and enhanced transparency by promoting e-filing of records, e-case management, and e-courtroom. When the next-generation electronic litigation system is established in 2024, it is predicted that a very innovative and user-friendly system will emerge. Unfortunately, however, it is difficult to find that aspect in terms of the rules of electronic litigation. In order to achieve the goal in a short period of time, the special law urgently created with only 16 articles remains the same, and accordingly, the Civil Procedure Act designed for traditional paper litigation is losing its normative power over the reality of litigation. The time has come to revise the Civil Procedure Act in a direction consistent with electronic litigation, just as new alcohol should be put in a new unit. Before it is too late, the Civil Procedure Act should be revised to default on electronic litigation and the norms should be redesigned to suit the new ICT environment. It is necessary to lay the foundation for actively utilizing virtual trials, which suddenly became a reality due to the COVID-19 Pandemic, and to expedite trials and promote the economy by resolving small cases online in line with the non-face-to-face contact era. In addition, it is time to calmly refine the principles of the use of artificial intelligence based on social consensus to prepare for the storm of artificial intelligence in the future.

COVID-19, COURTS, AND THE “REALITIES OF PRISON ADMINISTRATION.” PART II: THE REALITIES OF LITIGATION

Lawsuits challenging prisons and jails for not doing enough to stop the spread of COVID-19 among inmates have faced mixed results in the courts: wins at the district court level are almost always followed by losses (in the form of stays of any orders to improve conditions) at the appeals court level or at the Supreme Court. This short article tries to explain why this is happening, and makes three comparisons between how district courts and appeals courts have analyzed these lawsuits. First, district courts and appeals courts tend to emphasize different facts in their decisions. District courts focus more on the severity of COVID-19 and the heightened risk of its spread in correctional facilities; appeals courts tend to emphasize more the enormous managerial problems correctional officials face in the day-to-day running of prisons during a rampant and hard-to-control pandemic. Second, when it comes to the constitutional test of whether correctional officials have shown “deliberate indifference” to the spread of COVID-19 in prisons and jails, district courts look more at the objective harm suffered by inmates, where appeals courts fix on the lack of subjective culpability on the part of correctional officials. Finally, and most fundamentally, district courts seem to work with a picture that prioritizes the constitutional standards for prisons and jails—about which judges are the experts—while appeals courts frame their opinions with an eye to the expertise of those who have the job of running prisons and jails and deferring to them. The article concludes by positing that real reform at the level of prison management is more likely to come from the legislative and executive branches than as the result of court orders.

Waiving Removal, Waiving Remand – The Hidden and Unequal Dangers of Participating in Litigation

The law governing removal of cases to federal court and remand of cases from federal court has increasingly been codified. But what is not codified is left to courts, and courts have created bodies of law concerning waiver of the right to remove and waiver of the right to remand that are strongly skewed against plaintiffs and in favor of federal court adjudication, even in cases that raise only substantive state law issues. This a problem because there is no reason to believe that this development of the law is consistent with Congressional intent, or with an appropriate allocation of cases between state and federal courts. Moreover, it disadvantages plaintiffs for no good reason, and without providing adequate notice. The absence of statutory provisions governing conduct-based waivers raises the question whether courts unilaterally should be recognizing such waivers at all, as a matter of separation of powers, and if so, under what circumstances waiver should be found. This Article addresses those questions. It surveys the case law, and I take on the underlying policy questions. The doctrines that the courts have molded in these domains are not even close to even-handed. Under them, defendants are held to have waived their right to remove far less frequently than plaintiffs are held to have waived their right to remand. The need for litigants to clearly know in advance what will constitute a waiver, the realities of litigation, and the policy reasons for equalizing treatment of the parties and bringing symmetry to the law, all argue for substantial changes in the common law doctrines governing waiver of both the right to remove and the right to remand. Because the courts are unlikely to change what they have been doing without a push from Congress, the Article proposes statutory language and advisory notes to indicate Congressional intent. Such additions to the law would illuminate the very existence of judge-made waiver doctrines concerning removal and the right to remand, and should spur the development of case law that will be more coherent, defensible and fair than that which now exists. The proposed statute and advisory notes crystallize how the law of conduct-based waiver should be improved for the many lawyers and litigants who find themselves seeking to avoid a waiver and for the judges who must confront whether a waiver should be held to have occurred. (This is the Final Version, May 2019)

The Defense Perspective on Mediation

WHEN I first started practicing law 23 years ago, there were very few cases that settled through alternative dispute resolution (ADR). Today, it is becoming and unusual for a case to not be subjected to some form of ADR. The reasons for this are many, but some of the important ones include the fact that ADR is less expensive and less time-consuming than litigation; it has simpler procedural and substantive rules than litigation; it tends to be less hostile and emotionally charged than litigation; and it is flexible in scheduling than litigation. In addition, during a mediation, the parties retain the decision-making power to reach their own resolution, oftentimes utilizing remedies and relief that are not available to the parties in litigation. Based on the foregoing, I think it is safe to say that mediation is here to stay. What exactly is mediation? Mediation is the by which a neutral third party (the mediator) attempts, through participation in face-to-face negotiations with the disputing parties, to assist those parties in reaching an agreement that resolves the dispute. An oft-cited survey of general counsel, deputy counsel and chief litigators from 528 of the 1,000 largest corporations in America, the respondents noted that 85% had used mediation in the last 3 years and 84% said they were likely or very likely to use it in the future. This same survey also indicated that 81% of the respondents felt mediation provides a more satisfactory process than litigation, 66% said mediation provides more satisfactory settlements and 59% said mediation preserves good relationships. (1) I. Why Are You Mediating? In most mediations, the preferred end result is a full and final settlement of the dispute in question. There are also other equally important objectives that can be obtained through the mediation that do not include a full settlement of the dispute. One commentator has the following to say about these objectives: A. A Partial Settlement of Peripheral Issues One reality of litigation is that all claims and all defenses arising out of the same facts and circumstances must be asserted in the same lawsuit. The judicial goal here--to avoid multiplicity of suits--is important to the judicial system and must be met. An unfortunate consequence of the rule, however, is that many lawsuits end up filled with peripheral arguments that really aren't determinative of the central issues between the parties. This tends to expand, rather than narrow, the focus of the trial and drives up the time and cost of an adjudicated resolution. Mediation can serve to eliminate those peripheral disputes by final or interim partial settlement agreements, stipulations to abate certain portions of the trial, or agreements to informally set certain issues aside pending the resolution of the main claims. B. A Process to Move Toward Final Settlement Many times, despite the best efforts to prepare for every contingency in advance, mediations become stalemated because of insufficient information or lack of agreement on what the facilitated negotiations reveal to be core or pivotal issues of fact or law. Rather than calling impasse and returning to the litigation path, the mediation can be used to facilitate an agreed downstream program defining and scheduling further steps aimed at breaking those logjams and continuing steps toward reconciliation. C. A Better Understanding of the Opposition's Case Plan to listen to everything said during a mediation. Despite the considerable discovery skills developed by practitioners within the trial bar, it is seldom that the opposition's full story--complete with intended themes, nuances and emphasis is flushed out during discovery. More often than not, discovery will only reluctantly yield what we ask--not what we need to know. More importantly, mediation can provide the critical opportunity to see both sides of the story contrasted against each other. …

In Defense of Scholars' Briefs: A Response to Richard Fallon

In a thoughtful and provocative essay, Richard Fallon criticizes law professors for lightly signing onto 'scholars’ briefs,' that is, amicus briefs filed on behalf of a group of law professors claiming expertise in the subject area. Fallon argues that law professors are constrained by the moral and ethical obligations of their profession from joining scholars’ briefs without first satisfying standards similar to those governing the production of scholarship, and thus he believes that law professors should abstain from adding their names to such briefs more often than they do now. This response begins by describing the benefits of scholars’ briefs to both the bench and the legal academy, and then explains why scholars’ briefs may permissibly make arguments in the form of advocacy, rather than scholarship. Although I agree with Fallon that authors and signatories of scholars’ briefs must satisfy different standards than those that apply to practicing lawyers writing amicus briefs - such as being experts in the subject area and sincerely believing in the result the brief advocates - I do not believe that such briefs must adhere to the norms that apply to legal scholarship. I argue that the realities of litigation, in which a judge’s decision is inevitably influenced by both precedent and politics, coupled with the adversarial context in which such briefs are filed, justifies their departure from the pure standards of scholarship.

A brief CI compliance guide, part 2: Food Lions, lazy mosaics, and fuzzy impostors

Legal issues are examined in cases involving the use of a false identity to gather confidential information and the use of a false identity to gather nonconfidential information, as well as the failure to fully disclose one's true identity (without adopting a clearly false one) to gather either confidential or nonconfidential information. The law of deceit is examined, as are the realities of litigation and punitive damages. © 2000 John Wiley & Sons, Inc.