Expert Opinions

Today, December 1, the long awaited amendments to the Federal Rules of Civil Procedure go into effect. The “package” of amendments include rule changes across a number of rules (specifically Rules 1, 4, 16, 26, 30, 31, 33, and 34) and focus on increasing cooperation, achieving proportionality in discovery, and encouraging early case management by judges.

Our collective view of litigation is a bit like the old New Yorker map, which shows New York City magnified, and then skips most of the rest of the country, landing on the west coast. Thomas Clarke, Vice President of Research & Technology for the National Center for State Courts (NCSC), recently made that comparison, and he is right.

November 2015 is the 75th anniversary of the Missouri Plan, an innovative approach to selecting state judges intended to preserve their impartiality while holding them publicly accountable for their performance on the bench. First adopted by Missouri voters in 1940, this process is now used to select at least some judges in two-thirds of the states.

Lawyers, judges, and litigants alike have all come to the conclusion that the system is too expensive, complex, and time-consuming. If we are serious about having civil justice that is indeed just, speedy, and cost-effective, we have to make changes. Big changes.

The New York Times is running a series of articles on consumer-business arbitration. The writers observe that arbitration takes away transparency, due process, the right of appeal, and assurance of an impartial decision maker—all of the attributes of a court system. In exchange, it offers a speedier, cheaper process.

In response to record-breaking judicial election spending, and an unprecedented series of scandals involving supreme court justices, reform-minded folks in Pennsylvania are making historic strides toward change.

For the last ten years, IAALS—the Institute for the Advancement of the American Legal System—has worked to rebuild the civil justice system. After much work, and through collaboration with some of the very best minds in the country, we are finally reaching a critical goalpost in that mission.

Judges are the linchpin of the court system—the piece that that holds the wheels on. When a judge is engaged, attentive, and dedicated to assuring that each litigant gets the best the system can offer, then the process moves smoothly. When a judge is overworked, out of touch, or unprepared, then the wheels fall off.

It is no surprise that there is much confusion around how judges get to be judges in the United States. No two states use the same method to select and retain their judges, and even in individual states, the method may vary by the level of court and even location.

he Quality Judges Initiative at IAALS, along with Justice Sandra Day O’Connor and other members of our advisory committee, has been reaching out to governors of these states to urge them to use nominating commissions when filling court openings that occur between scheduled elections. These vacancy nominating commissions invite applications for open positions, screen and interview the candidates who apply, and recommend a short list of the best qualified to the governor for appointment.

States across the country are wrestling with the question of whether a mandatory retirement age should be imposed upon judges, and if so, what that age should be. A number of states are considering raising or eliminating their age limits, while in at least one state, lowering the maximum age has been proposed by legislators to try and keep the courts in line.

In response to the end-of-term decisions from the U.S. Supreme Court on marriage equality and the Affordable Care Act (Obamacare), some presidential candidates are calling for changes to the life tenure that justices enjoy under Article III of the U.S. Constitution.