State Ethical Codes and Federal Practice: Emerging Conflicts and Suggestions for Reform

The standards for resolving putative conflicts between federal laws are not always clear, and neither for that matter is the standard for determining what con- stitutes a federal law capable of superseding effect. The technique of setting federal norms of professional conduct on a decentralized basis by borrowing or incorporating state norms is increasingly trouble- some to the extent that the borrowed state norms are disuniform and that they are being put to multiple remedial purposes. Federal legisla- tion preempting state law of professional conduct is conceivable but hardly likely, particularly as the norms are pressed into duty for pur- poses other than professional discipline. Pending other steps that might lead to national uniformity, the answer for the federal courts may be a uniform set of norms directly regulating litigation conduct in all federal courts

State Ethical Codes and Federal Practice: Emerging Conflicts and Suggestions for Reform

The standards for resolving putative conflicts between federal laws are not always clear, and neither for that matter is the standard for determining what con- stitutes a federal law capable of superseding effect. The technique of setting federal norms of professional conduct on a decentralized basis by borrowing or incorporating state norms is increasingly trouble- some to the extent that the borrowed state norms are disuniform and that they are being put to multiple remedial purposes. Federal legisla- tion preempting state law of professional conduct is conceivable but hardly likely, particularly as the norms are pressed into duty for pur- poses other than professional discipline. Pending other steps that might lead to national uniformity, the answer for the federal courts may be a uniform set of norms directly regulating litigation conduct in all federal courts

The Reluctant Partner: Making Procedural Law for International Civil Litigation

Although the US has been a member of the Hague Conference on Private International Law Since 1964, other members may doubt the US\u27 willingness to abide by the international obligations it has incurred. The US\u27 ambivalence regarding international commitments is examined

Rights and Retrenchment in the Trump Era

Our aim in this Article is to leverage the archival research, data, and theoretical perspectives presented in our book, Rights and Retrenchment: The Counterrevolution against Federal Litigation, to illuminate the prospects for retrenchment in the current political landscape. In the book, we documented how an outpouring of rights-creating legislation from Democratic Congresses in the 1960s and 1970s, much of which contained provisions designed to stimulate private enforcement, prompted the conservative legal movement within the Republican Party to devise a response. Recognizing the political infeasibility of retrenching substantive rights, the movement’s strategy was to weaken the infrastructure for enforcing them. Although largely a failure in the elected branches and only modestly successful in the domain of court rulemaking, the project flourished in the federal courts. In both the book and this Article, we focus exclusively on law that bears on opportunities and incentives for private enforcement of federal rights. Our decision to limit the project in that way was based on considerations that are both practical and theoretical. It was fortified by evidence from our archival research that the counterrevolution started in the first Reagan administration as an ideological campaign against private litigation as a tool of federal policymaking and by our empirical data showing that the effort to retrench private enforcement of federal law preceded tort reform on both the administration’s and the legislative agenda during the Reagan years

What Do We Mean by "Judicial Independence"?

In this article, the author argues that the concept of judicial independence has served more as an object of rhetoric than it has of sustained study. He views the scholarly literatures that treat it as ships passing in the night, each subject to weaknesses that reflect the needs and fashions of the discipline, but all tending to ignore courts other than the Supreme Court of the United States. Seeking both greater rigor and greater flexibility than one usually finds in public policy debates about, and in the legal and political science literatures on, judicial independence, the author attributes much of the difficulty to three fundamental shortcomings, the failure to recognize that (1) judicial independence is not an end of government but a means to an end (or ends), (2) judicial independence and judicial accountability are not discrete concepts at war with one another, but rather complementary concepts that can and should be regarded as allies, and (3) judicial independence is not a monolith. The author shows how the instrnmental approach key to recognizing the first shortcoming also helps to grasp the second and third, and he explores the implications of each for the additional research that judicial independence needs and deserves. That research, he argues, should no longer ignore state courts or lower federal courts, and neither should it ignore changes in attitudes towards, or in the practical circumstances of, contemporary law and lawmaking. Recognizing that attention to the different functions that courts perform, even within the same system, may lead one to consider whether they should be subject to different arrangements concerning judicial independence (and accountability), the author suggests a number of inquiries that might profitably inform the answers to such questions

Federalism and Private International Law: Implementing the Hague Choice of Court Convention in the United States

Federalism is important in the United States. It is also important that the United States be able to participate effectively in a global economy and that those charged with the conduct of the country\u27s foreign affairs be able to make, and that the country abide by, international agreements that are designed to facilitate transnational commercial activity. The Hague Choice of Court Convention is one such agreement, the modest fruits of more than a decade of work in an international lawmaking effort that was initiated by the United States. However modest the fruits of the enterprise, the rest of the world is watching to see whether the United States ratifies, and how it implements, the Hague Convention. Effective dispute resolution processes are critical to a well-functioning global economy, and effectiveness for this purpose requires, just as it does for a national or regional economy, generous recognition and enforcement of judgments. Key to such generosity, in turn, are acceptable jurisdiction standards and, experience has demonstrated, reciprocity. Finally, mutual assurance that reciprocity will in fact be forthcoming requires very considerable uniformity and certainty in the governing legal rules. The Hague Convention leaves little room for variation or departure in standards for asserting jurisdiction or recognizing and enforcing judgments. Although there are good reasons to implement the treaty through legislation, the proposal that the uniform state law process be used for that purpose is not well considered. The history of domestic regulation does not provide strong normative support for state law to furnish the rules for jurisdiction and judgment recognition in international cases. Harmonization with abutting or intersecting state law norms, which is a legitimate concern in thinking about international private lawmaking on many subjects, is not generally a concern in connection with the law governing jurisdiction and judgment recognition. The Hague Convention appears to be an exception to that generalization with respect to jurisdiction, because choice of court clauses implicate contract law. Experience in the arbitration field suggests, however, that an attempt to harmonize would be a mistake, and the relevant state contract law is in any event underdeveloped and not uniform. Finally, federal implementation through legislation prescribing federal law that is mostly uniform, but a few provisions of which may borrow designated state law, would impose lower transaction and administrability costs, with no loss of accessibility, than would state implementation