Expert Opinions

A couple of years ago at Aspen, Margaret Marshall, who retired as Chief Justice of the Massachusetts Supreme Judicial Court in 2010, issued a chilling warning about how nations lose the rule of law. Marshall, who spent her early years in apartheid South Africa, said that when the rule of law goes, it does so “astonishingly quickly. The current election cycle brings to mind Marshall’s admonition, and in particular, the allegation that the “game is rigged”  leads again to considering the kind of corruption that campaign donations foster: The Citizens United Problem. The case has become a dog whistle on both sides. Progressive surrogates suggest that if only the case could be reversed, the flow of donations from corporations to political campaigns would cease, and with it corruption of the process. On the other side, conservatives caution that to cease the flow of funds would eviscerate the First Amendment guarantee of free speech. And guess what, both sides use the parade of horribles to—you got it—raise money.

On June 15, 2015, members of the American Bar Association joined with their British counterparts on a water meadow on the banks of the Thames at Runnymede, county of Surrey, England, directly under the flight path of Heathrow Airport. This event culminated the celebration of the anniversary of perhaps the seminal document on the rule of law: Magna Carta. I had the privilege of not only attending the 800th Anniversary of the sealing of Magna Carta, but also of chairing the ABA’s London Programs leading up to the actual anniversary. After two years of planning, the celebration exceeded all expectations, with the Her Majesty the Queen, the Her Royal Highness the Princess Royal, other members of the royal family, the Prime Minister, the Foreign Minister, the Archbishop of Canterbury, and the U.S. Attorney General in attendance.

The Framers of the Constitution knew a few important things about people in general. People want power. They seek to impose their will on others. They make mistakes. And they think they know more than they actually know. The Framers were introspective enough to see that these pervasive human shortcomings would be found in the public officials about to run our new government. The Framers, therefore, took systematic action to alleviate the impact of power-seeking, mistake-making, all-knowing officials who would fill the three branches.

More than two hundred years ago, our Founders created and signed the Constitution of the United States. This codified, written constitution established that ours would be a nation governed by the rule of law. The concepts embodied in the phrase “rule of law” are both simple and complex. Its simplicity derives from the fact that the underlying notion is clear: all persons, regardless of race, ethnicity, gender, religion, sexual orientation, economic or social status, or other group or individual characteristic, are equal in the eyes of the law. The concept, however, also requires that a complex web of laws and governmental actions come together to assure the protection of the rule of law for all.

IAALS made a clarion call for improvements to our courts some ten years ago, and since then has been instrumental in promoting rules changes, including the amended Federal Rules of Civil Procedure, effective December of last year. Those new rules have set sail with a rousing endorsement from Chief Justice John Roberts who, in his year-end report, described the amendments as “a major stride toward a better federal court system.” He also noted that the new Rules can only achieve the goal of a “just, speedy and inexpensive determination of every action and proceeding” (the promise of Rule 1) if “the entire legal community, including the bench, bar and legal academy, step up to the challenge of making real change.” IAALS continues to pursue that change, promoting the rules through educational programs, pilot projects, and a new culture necessary to make the changes successful.

"Courage is rightly esteemed the first of human qualities, because, as has been said, 'it is the quality which guarantees all others.'" —Winston Churchill. I agree with Churchill—who knew a thing or two about courage—that it is the quality that permits us to exercise whatever other virtues we possess. This is true for everyone, but especially for judges. No one can be a great judge, or even a good one, without the courage to do what what the law demands, even in the face of tremendous pressure to do otherwise.

At IAALS’ Fourth Civil Justice Reform Summit, we brought together stakeholders to brainstorm a vision for the courts of tomorrow and steps to get there. Today we release the report from that summit, Creating the Just, Speedy, and Inexpensive Courts of Tomorrow: Ideas for Impact from IAALS’ Fourth Civil Justice Reform Summit.

Figuring out how to educate law students to meet the needs of modern law practice is vitally important given shrinking job markets and changing demands on lawyers. IAALS has accepted that challenge with its Educating Tomorrow’s Lawyers initiative, which focuses on preparing new lawyers for successful participation in the legal profession. Law schools have traditionally focused on applicants’ LSAT scores and grade point averages to determine admissions to law schools. This produces a student body designed to perform well on standardized tests and in college-type settings. 

Over the last three years, I have had the privilege of chairing the Conference of Chief Justices’ Civil Justice Improvements Committee, whose recommendations were adopted last week by the Conference of Chief Justices and released today. The goal of this effort was to provide specific recommendations for how Chief Justices and Court Administrators in states across the country can address cost and delay in their state civil justice systems.

Our Foundations for Practice survey set out to define what new lawyers are lacking. After working with state bar organizations to distribute the survey across the country, we are sitting on more than 24,000 responses from lawyers in all 50 states. Today, we are releasing two exciting outcomes from the survey.

We live in a time of cynicism and dissatisfaction with government—a dissatisfaction that includes the judicial branch. Gallup surveys of satisfaction with the way the nation is being governed have been stuck for the past few years at levels not seen since the days of President Richard Nixon and Watergate. Approval of the United States Supreme Court, which historically stayed safely in positive territory, has been close to 50-50 in recent years—and was negative (50% disapproving, 45% approving) at the start of the Court’s term last October.

We are pleased to announce the results of our evaluation of the Resource Center for Separating and Divorcing Families (RCSDF)—the first manifestation of the IAALS Honoring Families Initiative’s out-of-court model for separation and divorce. 

IAALS has been instrumental in changing the landscape of Colorado’s civil pre-trial practice. It all began with Becky Kourlis’ provocative and influential speech at the American College of Trial Lawyers annual meeting in March 2007, where she outlined the disturbing trends and challenges facing our justice system. Becky’s talk was the seed that grew into the ACTL Task Force on Discovery and Civil Justice, which was tasked with taking a hard look at these problem areas and recommending improvements. IAALS provided a wealth of information, experience, necessary guidance, and high credibility to the Task Force.

IAALS’ Honoring Families Initiative recently released two new reports focused on the experiences of self-represented litigants in our family court system: Cases Without Counsel: Research on Experiences of Self-Representation in U.S. Family Court and Cases Without Counsel: Our Recommendations after Listening to the Litigants.

One of the reasons that the American experiment succeeded was the genius of our Founding Fathers in establishing a three-part system of government with an independent judiciary. Without an independent judiciary, we have just one more political entity, subject to the control of the majority, untethered from the Rule of Law, and susceptible to bullying.

Deans of law schools throughout the nation are faced with unprecedented challenges in legal education: significant restructuring in the legal employment market, high student debt loads, dramatic declines in applicants for admission, rapid technological advances, students who learn in new ways, shifting accreditation standards, national ranking systems, and concerns from the bench and bar about the preparedness of new lawyers. Against this background, it is so critical that deans have a forum to interact with each other, practitioners, judges, a variety of legal employers, and the many parties interested in and committed to the future of legal education.

Lawyers reach out to me from time to time to give me a dose of reality. Recently, a trial lawyer spoke to me of a few cases that had gone awry—and are examples of larger issues that plague our civil justice system. She did not give names, or case numbers, or jurisdiction, so if any of you reading this recognize yourselves, be assured that I do not.

When the Supreme Court of Missouri in January 2008 adopted a rule authorizing The Missouri Bar to create and administer the state’s first true judicial performance evaluation program, the state bar was faced with a very tight timeframe for implementation and a seemingly endless set of questions. How and where do we start? How should the evaluation be conducted? What form should the survey instrument take? What information should be considered by evaluators?

There is lots of talk about making changes in legal education at law schools. That's no surprise, law professors love to talk. If they loved practicing law, they'd be lawyers. Instead, ensconced in the ivory tower, safe from the perils of the real world, they leisurely debate what should happen to those poor souls (law students) who must leave the hallowed halls of law school, and actually go out in the world to practice law.

The use of social media by jurors is a growing problem. In response, California passed a state law in 2011 making violations punishable by contempt. Since then, such misconduct has only increased as jurors become even more technologically savvy and connected via smartphones.