Judging Rules, Ruling Judges

Bureaucracy and complexity are not pejorative terms, but they are limiting terms, and it makes sense to examine the limitations that inhere in them. The US needs to return from a system of judicially created rules back to a system of judicially scrutinized rules

Teaching Supplemental Jurisdiction

Symposium: A Reappraisal of the Supplemental-Jurisdiction Statute: Title 28 U.S.C. § 1367

Brown, the Civil Rights Movement, and the Silent Litigation Revolution

One doubts that Robert Carter, Thurgood Marshall, Spottswood Robinson, Jack Greenberg and the rest of the legal team that argued Brown v. Board of Education spent much time thinking about mass torts. Nonetheless, it is entirely appropriate that a commemoration of their achievements include not only that topic but also international human rights and health care, as well as the more expected ones of education and social welfare. Brown was part of a revolution, and revolutions often have collateral effects as important as their immediate consequences. The civil rights movement followed the same pattern. As an immediate consequence, that movement brought us school desegregation. Follow-on effects included desegregation of public facilities. These were important milestones in U.S. society. They achieved specific changes, but they also made possible the second civil rights revolution-the legislative actions that have, in the last four decades, transformed U.S. society. Beyond race and civil rights, Brown created several ripples, two of which provide the focus for this Essay. First, Brown and the civil rights litigation movement helped create a renewed belief, not just in the law, but more specifically in litigation as a noble calling and as an avenue for social change. That belief lies open to challenge, and it can leave students and lawyers frustrated at the distance between the aspirations that brought them to law school and the world of practice as they perceive it. But whether or not it is well-founded, this belief, with roots traceable to Brown and civil rights litigation, has endured for several generations. Thus, Brown reshaped the aspirations of lawyers in ways that are still important. Second, Brown constituted an important step in the restructuring of the U.S. bar. One of Brown\u27s progeny, NAACP v. Button, marked a first step in the relaxation of bans on solicitation and the marketing of lawyers. In the wake of Button came greater changes. Collectively those changes remade the world of practice, particularly on the plaintiffs\u27 side of the bar. We now have political candidates who regularly campaign for or against the trial lawyers, by which they mean the plaintiffs\u27 bar. To put this in perspective, it is unthinkable that any national political candidate in 1954 would have even thought it plausible to have a position on the plaintiffs\u27 bar

Teaching Supplemental Jurisdiction

Symposium: A Reappraisal of the Supplemental-Jurisdiction Statute: Title 28 U.S.C. § 1367