A Sixth Circuit Story

At the May 4, 1994 regular meeting of the Judicial Council of the United States Courts for the Sixth Circuit, the Council voted to suspend further review of local rules until it receives further guidance from Congress, the Judicial Conference of the United States or by case law on the question of whether provisions of the Civil Justice Reform Act take precedence over the Federal Rules of Civil Procedure. By so doing, the Council was ostensibly discharging responsibilities assigned to it by the Judicial Improvements and Access to Justice Act (JIA) of 1988. The JIA requires that every circuit council periodically survey local rules adopted by the district courts within the council\u27s purview for consistency with the Federal Rules of Civil Procedure and Acts of Congress, and it authorizes each council to modify or abrogate conflicting local directives. The Sixth Circuit Judicial Council\u27s decision may seem inconsequential in the 200-year history of the federal courts. However, the vote is a telling comment on the confused state of civil procedure and the need to ameliorate that situation. I wish to employ this apparently innocuous story as a starting point for exploring civil procedure\u27s current condition and for showing how the Council might resume its review with an approach to which its members seemed oblivious when voting. Several reasons explain the decision of the Sixth Circuit Judicial Council to postpone review. For example, complexity and fragmentation characterize modern civil procedure. More specifically, Congress did not state how councils should harmonize the JIA and the Civil Justice Reform Act of 1990 (CJRA). The Sixth Circuit Council also seemed to want a consensus before resolving a delicate, close question of authority and was justifiably concerned about spending scarce resources on an effort that members believed the CJRA could moot. The Council prematurely and unnecessarily suspended review, however. It can circumvent the conflict that Council members perceived between the JIA and the CJRA and thereby expeditiously fulfill most of its review obligations. The issue warrants analysis because all twelve regional circuit judicial councils must confront the same question that the Sixth Circuit Judicial Council faced when complying with its duties-responsibilities that few councils have fully satisfied. This Article undertakes that analysis. The second part of the Article analyzes the national and Sixth Circuit developments in civil procedure that led the Sixth Circuit Judicial Council to discontinue review. The third part offers suggestions for addressing concerns that underlay the Council\u27s postponement determination and for resuming the review mandated and discharging the obligations imposed

Some Cautions about Structural Overhaul of the Federal Courts

Once a Century: Time for a Structural Overhaul of the Federal Courts substantially improves understanding of the federal judicial system. Professor Martha Dragich first clearly describes the phenomena which she attributes to unprecedented increases in the number of appeals since the 1960s. The writer asserts that this crisis of volume has compromised appellate justice and made federal case law less coherent. Because Professor Dragich finds that appeals courts\u27 dual responsibilities to correct error in specific cases and to declare the law have also decreased justice and coherence, she proposes the creation of District Court Appellate Panels for correcting error and a Unitary Court of Appeals for making law. Once a Century significantly enhances comprehension of the judicial process. Professor Dragich affords much instructive information and numerous perceptive insights about which there is widespread agreement. For example, she offers helpful empirical data on the growth of appellate filings; few federal courts experts dispute that this increase has modified the appeals courts particularly by requiring judges to resolve mounting dockets with limited resources. Even Professor Dragich\u27s comparatively provocative ideas require readers to reconsider traditional ways of conceptualizing the courts. For instance, her analysis of appellate lawmaking, her plea for maximum national uniformity in the interpretation of federal law, and her call for a Unitary Court of Appeals suggest that regional circuits could now be outmoded. Notwithstanding Professor Dragich\u27s valuable contributions, some disagreement and even controversy attend her account. Most important, it remains unclear that justice is as diluted and that case law is as incoherent as she claims and, thus, that they are problematic enough to warrant treatment. This lack of clarity regarding justice, coherence, and many other attributes of modem appeals courts partly explains why there is less consensus about the need to apply numerous measures which might improve them. All of these ideas mean that Once a Century deserves a response. This essay undertakes that effort. I first briefly describe the article and then evaluate Professor Dragich\u27s critique of the appeals courts, emphasizing her assignment of responsibility for reductions in justice and coherence to the crisis of volume. I next assess Professor Dragich\u27s prescriptions and ascertain that there is insufficient understanding of the courts to support changes which are as profound as she proposes. I, therefore, recommend ways to secure clearer comprehension

Fin-De-Siecle Federal Civil Procedure

Professor Laurens Walker\u27s The End of the New Deal and the Federal Rules of Civil Procedure, 82 Iowa L. Rev.1269 (1997) (New Deal\u27s End), is a thought-provoking evaluation of the relationship between the New Deal\u27s conclusion and modem civil process. Professor Walker canvasses a series of recent, puzzling changes which present the most serious challenge to the procedural status quo since the adoption of the original Federal Rules in 1938. The author finds that the New Deal\u27s demise and the rejection of that regime\u27s reliance on experts, policies of centralized federal decisionmaking, and establishment of the national government as an instrument for social reform best explain these modifications. Professor Walker admonishes proceduralists to accept inevitable political change and to consider it when planning reform. Asserting that [m]ajor change in political structure and practice requires bold action, the writer calls for the creation of a national study group to undertake a searching review of civil process and to craft innovative remedies for present difficulties. Professor Walker provocatively suggests as a fruitful source of solutions recent welfare reform, from which he derives purportedly promising concepts: waivers of federal strictures, enhanced local control, mandatory research, and incentives for better management. New Deal\u27 s End is the latest of Professor Walker\u27s concerted efforts to improve procedural revision at the national level and in the ninety-four federal district courts. He has scrutinized the processes for amending federal and local civil procedures and devised constructive recommendations. The author has attacked the processes\u27 pressure points while urging relevant decisionmakers, particularly Congress and federal judges, to employ the tools of controlled experimentation, administrative law, and economic analysis in altering procedure. Professor Walker\u27s decade of careful work on these processes spans the very period when procedure has become increasingly balkanized. Indeed, that growing fragmentation apparently prompted the writer\u27s abandonment of less drastic ways to improve the current system which he had previously championed. The above propositions mean that New Deal\u27 s End deserves a response. This Essay undertakes that effort

Filling the District of Arizona Vacancies

The judicial vacancy crisis must end. The federal bench has experienced nearly a ten percent vacancy rate over an unprecedented four and a half-year period. The substantial number and protracted character of those openings have imposed numerous detrimental effects. These phenomena have delayed the scheduling of jury trials in many civil cases and even propelled termination of some litigation because the Speedy Trial Act requires that criminal matters have precedence. Indeed, the emergency designation has meant that some criminal proceedings were delayed in the Arizona District. The vacancy crisis places additional pressure on sitting judges, particularly the eight senior judges in the Arizona District who have commendably helped address the voluminous docket, but who are also reasonably expected to carry smaller caseloads once they assume senior status

Evaluating Federal Civil Justice Reform in Montana

The Civil Justice Reform Act of 1990 (CJRA) has reached the mid-point of its implementation nationally and in the Montana Federal District Court. At this juncture, one of the most important aspects of statutory effectuation is evaluation of the experimentation that federal district courts have conducted under the legislation. The timing is particularly propitious in the Montana federal district because the court recently completed the annual assessment of statutory implementation that the CJRA requires. These developments in civil justice reform, particularly relating to evaluation of the experimentation which has occurred, warrant examination. This Article undertakes that effort. The Article first considers the requirements regarding assessment that the legislation imposes. The piece then evaluates compliance with those strictures across the country and by the Montana Federal District Court. It also examines how assessment of implementation of procedures that are intended to reduce cost and delay informs understanding of civil justice reform. Finding that most of the statutory requirements relating to assessment have been satisfied, the Article concludes with a glimpse into the future

Elevated Pleading in Environmental Litigation

The recent United States Supreme Court opinion in Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit is critical to parties and attorneys who participate in environmental litigation. Leatherman proscribed the imposition of pleading requirements that are stricter than those ordinarily applied under Federal Rule of Civil Procedure 8(a). Such heightened pleading requirements compel plaintiffs to plead more facts, and courts can dismiss claims that fall short of the mark. The Leatherman court considered civil rights actions alleging that municipalities are liable under 42 U.S.C. § 1983.2 Although Leatherman might seem of limited relevance to environmental lawsuits, its holding and reasoning appear sufficiently broad to encompass environmental litigation. Numerous federal circuit and district courts have recently required that plaintiffs plead with particularity in environmental actions, principally cases pursued under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA). Leatherman may prohibit elevated pleading in environmental litigation. This article analyzes whether the Supreme Court has proscribed heightened pleading in environmental lawsuits in Leatherman and the consequences of that prohibition. Part I examines the origins and development of elevated pleading requirements in certain types of cases. This Part considers the rise of heightened pleading in civil rights actions and its extension to environmental suits, emphasizing the leading case of Cash Energy v. Weiner. Part II evaluates the Supreme Court\u27s opinion in Leatherman and finds that the decision is expansive enough to include environmental actions. The final Part assesses Leatherman\u27s implications for environmental litigation

Book Review- Turning the Tide: Saving the Chesapeake Bay

Nearly a quarter century ago, the states of the Chesapeake Bay region entered a compact by which they meant to improve the declining environmental quality of this national treasure. Concerned about the Bay\u27s accelerating degradation, these jurisdictions hoped that the agreement would enhance the situation or at least stop the deterioration. Ten years after that accord\u27s consummation, Tom Horton evaluated whether progress had been achieved in improving the Bay\u27s environmental health. The writer determined that the answer was inconclusive. When a second decade had passed since the compact\u27s adoption, Horton decided that he would conduct another examination to determine what had occurred in the ensuing ten-year period. This exploration led to the publication of Turning the Tide: Saving the Chesapeake Bay. Because the agreement has now been in effect for more than two decades and because questions regarding the Bay\u27s environmental quality remain even more pressing today, Horton\u27s volume warrants review. This piece undertakes that effort

Electing Justice Roush to the Supreme Court of Virginia

In late April 2015, the Supreme Court of Virginia announced that Justice LeRoy F. Millette, Jr. would retire on July 31, 2015. Democratic Governor Terry McAuliffe expeditiously created an open process for tapping a worthy successor. At July’s conclusion, the Governor appointed Fairfax County Circuit Judge Jane Marum Roush, an experienced, consensus jurist. On a Sunday night, merely two days after Roush swore her oath of office, Republican General Assembly leaders proclaimed their caucuses’ intention to elect another individual, despite conceding that Roush was very qualified. During the August special session, this concerted GOP endeavor prompted a Republican senator to join Democrats who opposed the prospect and concomitantly adjourned. GOP leaders then contended that legislators remained in session, as the Virginia Constitution explicitly prescribes Senate and House of Delegates consent to adjourn. The Governor’s Counsel next penned an opinion that concluded that lawmakers had adjourned, so McAuliffe could appoint Justice Roush to the Court again, a choice that he implemented thirty days after adjournment. Because these efforts precipitated a constitutional standoff and will consequently plague future judicial selection, they warrant analysis. The initial part of this Article chronicles the rise and evolution of Virginia court selection. Part Two scrutinizes recent machinations, determining that the procedures now merit improvement. The last section proffers suggestions. For the near term, the Assembly ought to promptly elect Roush. She brings twenty-two years of judicial service, including over five months as a justice. Moreover, Roush’s removal for reasons unrelated to her abilities, earlier performance, or future capacity to serve would make a mockery of the selection regime, undermining citizen respect for it, the whole state judiciary, as well as the Governor and the Assembly. Across the longer term, the Commonwealth must evaluate and initiate changes that will enhance selection

Common Sense and Other Legal Reforms

Enactment of Congress\u27 proposed Common Sense Legal Reforms Act (CSLRA) would impose procedural and substantive reforms that could significantly affect much federal civil litigation and could have substantial systemic impacts on the civil justice process. For instance, the measure\u27s advocates drafted and introduced the proposed legislation with little apparent appreciation for how it might conflict with a number of ongoing public and private reform initiatives, such as an earlier Congress\u27s Civil Justice Reform Act of 1990 and the American Law Institute\u27s efforts to adopt a Third Restatement of Torts governing products liability. The bill\u27s enactment, therefore, could additionally complicate the increasingly complex civil justice system. Indeed, certain of the measure\u27s provisions may impose greater expense and delay in civil litigation, thereby exacerbating numerous current problems rather than producing the reforms\u27 ostensible purpose of ameliorating the difficulties. These phenomena mean that the Common Sense Legal Reforms Act warrants analysis. This Essay undertakes that effort. Part II of this Essay examines the backdrop against which the proponents of the Common Sense Legal Reforms Act drafted the legislation. The Part emphasizes those continuing public and private law reform efforts with which many provisions of the measure promise to conflict. Part III descriptively analyzes the specific procedural and substantive requirements of the CSLRA and considers particular provisions\u27 adverse effects on individual cases, ongoing reform initiatives, and the civil justice system. The Part finds that numerous statutory prescriptions will have deleterious impacts on plaintiffs and resource-poor litigants by, for instance, restricting their federal court access. The act may also disrupt continuing civil justice reform efforts, thus enhancing complexity and disuniformity in federal civil procedure and concomitantly increasing litigation cost and delay. Part IV affords suggestions for the future. These recommendations principally urge Congress to reject or delay the passage of the Common Sense Legal Reforms Act. If Congress remains unpersuaded that the legislation will have numerous detrimental effects on much civil litigation and on the broader civil justice system, or if Congress chooses to proceed for other reasons, it should at least consider additional options. For example, Congress should not enact the CSLRA provisions that will conflict with ongoing reform initiatives

Diversity and the Federal Bench

Justice Sonia Sotomayor\u27s appointment was historic. She is the first Latina Supreme Court member and President Barack Obama\u27s initial appointment. Her confirmation is the quintessential example of his commitment to increasing ethnic and gender diversity in the judiciary; it epitomizes how the administration has nominated and appointed people of color and women to the appellate and district courts. Enhancing diversity honors valuable goals. Selection across a presidency\u27s initial fifteen months also creates the tone. These ideas suggest that the nascent administration\u27s judicial selection merits evaluation, which this paper conducts. Part I briefly assesses modern chief executives\u27 divergent records in naming minority and female judges. Part II descriptively and critically evaluates the Administration\u27s practices for choosing those jurists and the success realized. Ascertaining that Obama expeditiously nominated many well-qualified persons of color and women but the Senate approved few, the last portion offers recommendations for swift confirmation