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Lewis & Clark Law Review

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Volume 18 / Number 3 / 2014

FEDERAL RULES SYMPOSIUM

INTRODUCTION TO THE FEDERAL RULES SYMPOSIUM: A TRUBITE TO JUDGE MARK R. KRAVITZ

Robert H. Klonoff & Spencer C. Wilson

18 Lewis & Clark L. Rev. 583 (2014)

LETTER TO THE SYMPOSIUM IN HONOR OF JUDGE MARK R. KRAVITZ

Chief Justice John G. Roberts, Jr.

18 Lewis & Clark L. Rev. 589 (2014)

ARTICLES

REVISING CIVIL RULE 56: JUDGE MARK R. KRAVITZ AND THE RULES ENABLING ACT

Edward H. Cooper

18 Lewis & Clark L. Rev. 591 (2014)

This contribution uses the history of amending Federal Rule of Civil Procedure 56 “Summary Judgment” to pay tribute to Mark R. Kravitz and to the Rules Enabling Act process itself. The three central examples involve discretion to deny summary judgment despite the lack of a genuine dispute as to any material fact, the choice whether to prescribe a detailed “point-counterpoint” procedure for presenting and opposing the motion, and the effect of failure to respond to a motion in one of the modes prescribed by the rule. These topics are intrinsically important. The ways in which the Civil Rules Advisory Committee and the Standing Committee on the Rules of Practice and Procedure grappled with these topics provide strong reassurances about the capacities of the Enabling Act process to work through difficult problems both by work internal to the committees and by considering, understanding, and adopting the wise advice offered by public comments and testimony at the public hearings.

HOW TO STEER AN OCEAN LINER

Richard Marcus

18 Lewis & Clark L. Rev. 615 (2014)

Steering an ocean liner or supertanker is reportedly difficult; the vessel itself is unwieldy, and there are many fast-changing problems to navigate through or around, including inclement weather, ocean currents, and shoals of various sorts. Steering the rulemaking process sounds easier, but it has recently been anything but. Proceeding from this analogy, Professor Richard Marcus, Associate Reporter to the Advisory Committee on Civil Rules, explores the chronology of six distinct periods of procedural rulemaking in the United States. After exploring the history and development through the preceding five periods of rulemaking, Professor Marcus posits that the sixth period began when Judge Mark Kravitz became the Chair of the Advisory Committee. With praise for Judge Kravitz, Professor Marcus examines how Judge Kravitz built on the foundations or rulemaking, minimized secrecy in the rulemaking process and developed outreach to the bar and bench. Marcus deems this final period the Kravitz Era, named for the man who was the skipper of the supertanker that is the federal rulemaking process.

THE CIVIL RULES COMMITTEE AND AMENDING RULE 56

Edward Brunet

18 Lewis & Clark L. Rev. 627 (2014)

This paper will look closely at the Advisory Committee on Civil Rules’ efforts to revise Rule 56, the summary judgment rule. The strong showing in the increase in those wanting to testify is consistent with Congressional intent to achieve an open and transparent process. The Civil Rules Committee now makes great effort to obtain, solicit, and make available empirical information regarding the rules. Despite the growth of Committee involvement with outside participants, one sometimes hears complaints that the Committee is frozen or just plain unwilling or unable to make major changes. To be sure, the Committee has an option to stand pat and take no action. This is an historic stance that any group of legislators possesses. This paper necessarily describes the work of the Civil Rules Committee as that of a legislative or rulemaking model. The Committee allows Article III judges to craft legislative rules authorized by the Article I Congress. The analogy of an expert administrative agency is clearly appropriate in this context. Congress has delegated the task of rule creation in civil cases to an expert group of federal judges. This allocation to an expert group of adversary model decision makers is what it is—the presence of expertise in one model does not necessarily lead to all-encompassing expertise in other models of governance. Working through this model, I take an optimistic view toward the recent summary judgment work of the Committee and address the 2008 and 2009 revisions to Rule 56, the Committee’s restoration of the word “shall” to the text of Rule 56, and the Committee’s rejection of the point–counterpoint amendment.

FOUR YEARS AFTER DUKE: WHERE DO WE STAND ON CALIBRATING THE PRETRIAL PROCESS?

Steven S. Gensler & Lee H. Rosenthal

18 Lewis & Clark L. Rev. 643 (2014)

The current Civil Rules are built upon the expectation that judges will manage their cases. But the rules themselves provide little guidance on the critical questions of calibration and scale necessary to guide judges on how to manage. Are the rules designed for big cases, ordinary cases, or small cases? When should judges impose new limits or depart from existing ones, and in which direction? Judges are told to strive for proportionality, but benchmarks are not always apparent. This essay explores various ways that courts and rulemakers have tried to address the problems that arise from having a single set of rules in a system with a wide range of case types and sizes. We conclude that the best model is to calibrate the general civil rules to ordinary cases and use case management and special protocols for the smallest and largest of cases. And, ultimately, the key to such a system remains finding ways to help judges know not just how to tailor their cases but when tailoring is needed.

BACK TO THE BASICS OF ERIE

Diane P. Wood

18 Lewis & Clark L. Rev. 673 (2014)

This paper argues that the rule from the Supreme Court’s decision in Erie Railroad Company v. Tompkins has become unnecessarily complex. The Legal Realism movement was in full swing when the Court decided Erie, which influenced the portrayal of the pre-Realist judges and decisions. Justice Brandeis’s mischaracterization of the Court’s earlier decision in Swift v. Tyson, followed by years of the Court creating numerous exceptions to the default rule pointing to state law—cases in which the Court has found a “uniquely federal interest”—have resulted in the rule from Erie becoming the unwieldy Erie doctrine. This paper examines how to return the Erie doctrine to its first principle while remaining true to the federalist structure at the root of our Constitution.

TRIBUTES

TRIBUTE TO JUDGE MARK R. KRAVITZ

Charles J. Cooper

18 Lewis & Clark L. Rev. 697 (2014)

KRAVITZ’S LAW

Elizabeth Cabraser & Peter Keisler

18 Lewis & Clark L. Rev. 703 (2014)

A TRIBUTE TO JUDGE MARK KRAVITZ

Jeremy Fogel

18 Lewis & Clark L. Rev. 709 (2014)

A TRIBUTE TO JUDGE MARK KRAVITZ

Anthony J. Scirica

18 Lewis & Clark L. Rev. 711 (2014)

2013 HIGGINS DISTINGUISHED VISITOR

THE BRANDEIS BRIEF AND 21ST CENTURY CONSTITUTIONAL LITIGATION

Alan B. Morrison

18 Lewis & Clark L. Rev. 715 (2014)

The “Brandeis Brief” is an ideal that many lawyers have of an advocacy tool used to persuade a court facing a difficult constitutional question how extra-record materials can help the court decide in favor of the advocate. Long time constitutional litigator and now George Washington Associate Dean Alan Morrison examines the original Brandeis brief and concludes that, judging by the advocacy standards of today, the original brief was not a very effective advocacy tool. He uses that examination to ask a more basic question: what kind of factual material bearing on constitutional questions should be considered if cited in briefs—amicus or otherwise—and which should come in through the adversary process, including the right to cross-examine the authors of key studies. He uses the constitutional challenge to the Defense of Marriage Act that the Supreme Court struck down in United States v. Windsor to argue that much of the material in both the standard of review question and the merits of certain of the defenses would have profited from further probing at the trial court level, although because of the grounds relied in by the majority, those questions were not answered, but are likely to arise again in the challenges to state law bans on same-sex marriages.

2014 DISTINGUISHED INTELLECTUAL PROPERTY VISITOR

THE INDEFINITE ROLE OF THE TRIAL JUDGE IN PATENT LITIGATION

Honorable Patti B. Saris

18 Lewis & Clark L. Rev. 751 (2014)

NOTES & COMMENTS

GLOBAL JUSTICE THROUGH GLOBAL ORGANIZING: HOW LESSONS FROM OUR LABOR PAST CAN TURN RHETORIC INTO REALITY

Sara S. Demirok

18 Lewis & Clark L. Rev. 767 (2014)

CLASSIFYING CRIME VICTIM RESTITUTION: THE THEORETICAL ARGUMENTS AND PRACTICAL CONSEQUENCES OF LABELING RESTITUTION AS EITHER A CRIMINAL OR CIVIL LAW CONCEPT

Bridgett N. Shephard

18 Lewis & Clark L. Rev. 801 (2014)

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