No Final Victories: The Incompleteness of Equity’s Triumph in Federal Public Law

Prominent areas in which the US Supreme Court has denied equitable relief are examined, demonstrating the limited nature of equity\u27s triumph in federal public law. The rationale behind the trend away from equity in such decisions is discussed

Exhuming the “Diversity Explanation” of the Eleventh Amendment

This essay, in a symposium honoring the scholarship of Ninth Circuit Judge William A. Fletcher, explores the “diversity explanation” of the Eleventh Amendment that he had advanced in articles while he was a UC-Berkeley law professor. That explanation, contrary to existing Supreme Court doctrine that heavily constitutionalizes state sovereign immunity from suits by private parties and foreign countries, would view the Eleventh Amendment as having solely to do with federal courts’ constitutional jurisdiction and nothing to do with states’ sovereign immunity. The essay notes the cleanness of interpretation provided by the diversity explanation, in contrast with the convoluted nature of current doctrine, and concludes that overruling of that doctrine would be warranted

Consent and the Roots of Judicial Authority: The Constitutional Writings of Archibald Cox (Book Review)

Reviewing A. Cox, The Role of the Supreme Court in American Governmen

Twelve-Person Federal Civil Jury in Exile

In the mid-1990s, the Advisory Committee on Civil Rules, with Fifth Circuit Judge Patrick Higginbotham as Chair and our honoree, Professor Ed Cooper, in the early years of his long service as Reporter, unanimously (coincidentally, by a 12-0 vote) proposed an amendment to Federal Rule of Civil Procedure 48 that would have required the seating of twelve-member juries in federal civil trials. The requirement of a unanimous verdict, unless waived by the parties, and the abolition of alternate jurors would have been unaffected; attrition could reduce a jury\u27s size below twelve members, with a floor of six unless the parties consented to a verdict rendered by a smaller jury. The Standing Committee approved the final proposal by a wide margin, but the Judicial Conference rejected the change. As a member of the Advisory Committee at the time I was strongly persuaded that the amendment had merit and continue to feel that way, but must admit that the chances of a renewed proposal being adopted seem virtually nil no matter its merit. This brief account is, then, a lament rather than a call to action

Authorized Managerialism Under the Federal Rules— and the Extent of Convergence With Civil-Law Judging

This article, part of a symposium marking the fortieth anniversary of the United States District Court for the Central District of California, first surveys the (very considerable) extent to which changes in the Federal Rules of Civil Procedure over the past quarter century have expanded and legitimized the pretrial managerial powers of federal trial-court judges. It then turns to an issue sometimes touched on in prior literature--whether the move toward greater managerialism departs from the adversarial model of the judge as passive referee and makes us more like supposedly inquisitorial civil-law systems. To the extent that civil-law judges generally exercise considerable initiative and control in shaping the course of civil proceedings (which they appear to do in some civil-law systems but less so or very little in others), greater managerialism in America does appear to bring about a significant degree of convergence. And greater promotion of settlement and alternative dispute resolution by American managerial judges also seems to bring us closer to practice in at least some prominent civil-law systems. But a defining feature of systems that truly deserve the label inquisitorial is judicial primacy in fact-gathering, found in some--but again, not all--civil-law systems. On this measure American managerialism largely does not put the judge in that role, so that statements appearing to see our managerialism as converging with inquisitorial systems are correct only to the extent that our practices may be becoming somewhat more like the non-inquisitorial aspects of civil-law judging. Nor should the label inquisitorial obscure the very considerable extent of party control that exists in civil-law as well as adversarial common-law systems. And, of course, much American pretrial managerialism is about discovery, of which civil-law systems (and other common-law ones as well) have considerably less than we do. The convergence effected by greater American pretrial managerialism thus is significant, but in limited respects, and needs to be addressed with precision. In particular, comparisons should avoid implying that we are yet in any major way moving toward the model of judge as truly inquisitorial investigator with lead responsibility for ferreting out the facts relevant to the parties\u27 dispute