Autumn 2015 - Volume 99 Number 2

A Passion for Justice

by J. Michelle Childs

Autumn 2015 | Volume 99 Number 2

When you call the name of the Hon. Matthew J. Perry, Jr., everyone reminisces about their cherished memories of this legal and judicial luminary who had a zeal for the […]

Time Magazine Supreme Court Photo - 1937

Shooting From the Hip: Concealed Cameras in the United States Supreme Court

by Kyle C. Kopko and Erin Krause

Autumn 2015 | Volume 99 Number 2

On mar. 28, 1996, Justices David Souter and Anthony Kennedy testified before a House Appropriations subcommittee to discuss the Supreme Court’s budget for the upcoming fiscal year. Souter, appointed by […]

A Frankenstein character with "MDL" on shirt is "wrangled" by ropes

Wrangling the Beast

by Jaime L. Dodge

Autumn 2015 | Volume 99 Number 2

With multidistrict litigation cases occupying a full third of the federal docket, would you know how to litigate or adjudicate one? If your answer is a bit timid, it may […]

U.S. dollars in a jar

Discovery Cost Shifting: Has Its Time Come?

by Alex Dahl and John Vail

Autumn 2015 | Volume 99 Number 2

Since at least 1990, a few courts have shifted payment of discovery costs to the requesting party either under their general case- management authority or as part of a Rule 26 […]

Richard A Posner Book Title

A Judge’s Life

by Scott D. Makar

Autumn 2015 | Volume 99 Number 2

“Can one ever have his or her fill of Richard Posner?”1 The answer to this question, for many, is “No.” For those afflicted with “Posner-mania” — the incessant need to […]

A Dozen Canons of Statutory and Constitutional Text Construction

by Bryan A. Garner and Antonin Scalia

Autumn 2015 | Volume 99 Number 2

Supremacy-of-Text Principle. The words of a governing text are of paramount concern, and what they convey, in their context, is what the text means. Principle of Interrelating Canons. No canon of interpretation […]

The MDL Vortex Revisited

by Thomas Metzloff

Autumn 2015 | Volume 99 Number 2

One of the more interesting cases I worked on as a young associate in the early 1980s involved george steinbrenner, the well-known owner of the New York Yankees. He had […]

Bureaucratizing the Courts? Finding MDL’s Place in the Traditional Legal Culture

by Patrick Higginbotham

Autumn 2015 | Volume 99 Number 2

Over the past three decades three forces gained prominence in the narrative of the 1938 rules: the decline of trials with a companion embrace by bench and bar of arbitration and […]

A Closer Look at New Pleading in the Litigation Marketplace

by Scott Dodson

Autumn 2015 | Volume 99 Number 2

Courts and parties undoubtedly are affected by the new pleading regime of twombly and Iqbal. But, as rational actors, they also are responsive to it. Their responsive behaviors both mitigate […]

What Every Judge and Lawyer Needs to Know About Electronic Evidence

by Gregory P. Joseph

Autumn 2015 | Volume 99 Number 2

Not long ago, “friend” was a noun, “yelp” meant a shrill bark, “twitter” referred to a chirp, a “tumbler” was a gymnast or a glass, and “facebook,” “youtube,” and “instagram” […]

Third Circuit Clarifies Ascertainability Standard for Class Actions

by Lauren Sanders

Autumn 2015 | Volume 99 Number 2

Third Circuit Clarifies Ascertainability Standard for Class Actions In Byrd v. Aaron’s, Inc. (Byrd v. Aaron’s Inc., 784 F.3d 154 (3d Cir. 2015)), the U.S. Court of Appeals for the Third […]

The Doctrine of the Last Antecedent, the Example in Barnhart, and Why Both Are Weak

by Joseph Kimble

Autumn 2015 | Volume 99 Number 2

Start with an innocuous example: men and women who are tall. Are you talking about all men or only those who are tall? That is, does the who-clause modify both nouns? There’s no […]

Judge Grimm with Justice Antonin Scalia

From the Editor in Chief

by Paul W. Grimm

Autumn 2015 | Volume 99 Number 2

This is the second edition of Judicature since its publication was assumed by Duke Law School and its Judicial Studies Center, and the feedback from the first edition has been both […]

Letters to the Editor

Letters to the Editor

by Judicature Staff

Autumn 2015 | Volume 99 Number 2

Passing the torch It was with great sadness that, after more than 100 years advocating for integrity in American justice, the board of the directors for the American Judicature Society […]

Metal with words "Pat. Pend." stamped

On the Hill: PATENT Act Aims To Curb Patent Trolls

by Arti K. Rai

Autumn 2015 | Volume 99 Number 2

On Apr. 29, a bipartisan coalition of Senate Judiciary Committee members led by Senators John Cornyn (R-TX) and Chuck Schumer (D-NY) introduced the Protecting American Talent and Entrepreneurship Act of […]

In This Edition: Autumn 2015

by Judicature Staff

Autumn 2015 | Volume 99 Number 2

Departments Editor’s Note, Letters To The Editor, Briefs The Storied Third Branch A Passion For Justice J. Michelle Childs On Courts Tightrope Act: Fisa Court Reforms Maj. Gen. Charles J. […]

When can judges engage in political activity?

by Cynthia Gray

Autumn 2015 | Volume 99 Number 2

When can judges serve on commissions or engage in political activity? Many provisions in the code of judicial conduct refer to “the law, the legal system, or the administration of […]

Person walking on tightrope of cartoon bombs

Tightrope Act: Can new FISA court reforms address privacy concerns without impeding anti-terrorism efforts?

by Maj. Gen. Charles J. Dunlap, Jr. USAF (ret.)

Autumn 2015 | Volume 99 Number 2

Although the revamping of bulk data-collection practices dominated headlines about the passage of the USA Freedom Act in June, the new law also contained reforms of the Foreign Intelligence Surveillance Court […]