Paul D. Carrington

The Alienation of Law Students

the reduction of such waste. As few as one in twenty first-year students now fails to complete his or her degree.2 However, the result may be less favorable than this comparison suggests. Our research suggests that there is much waste that is disguised by the retention rate. Indeed, our data indicate the possibility that roughly one in seven Michigan law students now drops out emotionally and intellectually, without formally withdrawing from the school. The socializa-

Judicial Independence and Democratic Accountability in Highest State Courts

It was widely foretold that our Republic, like all its predecessors, would be torn apart by mistrust and unrestrained political rivalry dismembering its institutions.1 There were times past when this seemed to be happening and yet did not. So here we are, two centuries and more later, still a constitutional democracy. For a century, we have fought wars in its name and have propagated the idea in a hundred countries. As I write, our government is actively engaged in promoting democracy in Malaysia and Iraq.2 It is curious that such a moment of success would also be a time for bitter recrimination among our political leaders. Especially so, given that the substance of the issues dividing us seem relatively inconsequential compared to those on the public agenda in earlier times when mistrust and incivility were high, when bitterness could be explained as a reaction to external threats, severe economic conditions, or slavery and its vestiges. How do we account for the ugliness presently besetting our politics? It is possible that our present troubles are chiefly caused by forces too deeply set in the culture to be usefully addressed by legal or political means. Thus, it seems likely that some part of the elevation of mistrust is caused by the collapse of the Soviet Union, an event depriving us of a compelling reason to trust one another.3 It also seems likely that the demise of the family is a con-

Contract and Jurisdiction

A comment on six recent decisions of the Court interpreting the Federal Arbitration Act of 1925. Also included is a brief analysis of the Courts treatment of forum selection clauses. The argument is advanced that the Court has overindulged the impulse to favor international trade and the ADR movement, and has transmogrified the national law governing arbitration. Special criticism is directed at the failure of the Court to acknowledge the sometimes lawless and sometimes costly character of arbitration, or its potential abuse in contracts of adhesion, and at the Courts unwarranted pre-emption of state law, and undermining of the finality of arbitral awards. The authors contend that the courts work is especially regrettable because Congress had it about right; the only practicable solution to a deplorable situation is for Congress to reform the 1925 Act to protect employees, consumers, patients, franchisees, and the power of states to employ private means to enforce state law.

Virtual Civil Litigation: A Visit to John Bunyan's Celestial City

This essay is a speculation on the future impact on civil procedure of the invention of the computer chip. Given easy, almost costless, preservation of images in digitized form, and their instantaneous transmission over long distances, there will not longer be sufficient reason to require or expect that much if any evidence will be presented in the form of personal testimony by witnesses in a room in which the judge, jury, and counsel are all present. A trial will be a movie, and trial counsel become co-producers of a multi-media presentation. Testimony will be recorded in advance of trial and reviewed by adversary counsel, much as documentary exhibits presently are. Because all the proof is unalterably recorded before any of it is presented to a trier of fact, every evidentiary issue can be resolved before trial. This will result in a clean visual recording of all the testimony and arguments of counsel to be presented, with no distractions from bickering among lawyers and judges. The possibility of surprise at trial will be completely eliminated. Appellate review prior to trial of the pretrial rulings would be the rule. The mistrial would be eliminated. So would those trials conducted for the purpose of delay. The jury trial would be the climactic event in which the citizen-jurors are given the final word. The interrogation of witnesses, under oath or otherwise, would be conducted by videoconference, at a time and place convenient to the witness, generally at the witnesss home or workplace. The interrogator could be thousands of miles away, and could be conducted discontinuously. Thus, a defendant might efficiently elect to wait until he has been seen the plaintiff?s tentative presentation at trial before beginning to erect a defense by conducting cross-examinations that might be used in the defenses presentation. Because digitization makes retrieval so easy, parties could have full access to statements and recorded interviews conducted in earlier adjudication against adversaries presenting cases involving identical or closely similar issues of fact for the purpose of discovering possible evidence, especially including prior inconsistent statements, parties. All examinations of witnesses and examined documents would be filed with the court to digitized form. The problems of storage disappears because all the testimony given in all cases in the United States in a year can be stored in a single computer occupying very little space. A national index of testimony by any citizen in any court could be maintained so that material could be retrieved with modest effort by counsel. Counsel would be obligated during the pretrial process to participate in a continuing discourse with one another regarding the pretrial investigation of facts at issue. This duty would be performed digitally and recorded. This electronic conversation would replace formal notices and requests, interrogatories, answers to interrogatories, and case management conferences with the judge. Because the communications would be part of the record in the case, there would be meager opportunity to engage in off-the-record incivilities. A similar form of communication would generally replace the service of a summons as the means of initiating litigation. Every government or public agency, federal, state, or local, and every corporation engaged in commerce or owning property would be required to register its electronic address for the receipt of service of process. The virtual courthouse is equally accessible everywhere. Much of the law of territorial jurisdiction is obsolesced. This suggests the need for more tightly drafted venue requirements designating a place of trial for every kind of case, leaving the plaintiff little room for shopping.

Law as “The Common Thoughts of Men”: The Law-Teaching and Judging of Thomas McIntyre Cooley

In this article, Professor Carrington offers an intellectual history of Thomas Mcintyre Cooley. Cooley, a close contemporary of Dean Langdell, was in his time the premier judge, law teacher, and legal scholar in America, overshadowing not only Langdell, but his somewhat younger associate, Oliver Wendell Holmes. The twentieth century has neglected, even scorned, Cooley, while elevating Langdell and Holmes: Langdell as the patron of a technocratic profession trained by Hessians, and Holmes as the patron of a disengaged academic subprofession. In the Jacksonian universe producing Cooley, there was little appreciation of the likes of either Langdell and his successors, or Holmes and his. This article compares the law teaching of Cooley to that of Langdell, and his judging to that of Holmes, and imagines that Cooley might in the twenty-first century regain some of the respect he lost in the twentieth.

Adjudication as a Private Good: A Comment

The paper is in fact two papers which can be discussed separately. The first part urges us to think of judicial services as a market in which public and private institutions compete for the business of litigants. It is of course true that judicial services meet private needs, and that the needed service can take many forms involving more or less use of the coercive power of the state. The frailty of this vision is that it conceals the heavy interdependence of the supposed competitors. There is much more cooperation than competition among them. Every adjudicative process depends in some measure on the expectation that disputants will work out some or most of their differences. It may be a universal precept of legal systems that the public power to coerce individuals and impose decisions on them be used as sparingly as possible. Indeed, it is doubtful that a government could long survive which had no such impulse to conserve its power. Governmental policy will thus tend to favor systems or procedures which yield order without resort to the lash of public power. And public adjudication will tend to rely as much as possible on the parties to assume responsibility for outcomes.3 While these tendencies may even be universal, they have sometimes been

The Constitutional Law Scholarship of Thomas McIntyre Cooley

Thomas McIntyre Cooley won a national reputation as a legal scholar unequalled by any American in his time. Between 1868 and 1879, he wrote original treatises on Constitutional Limitations,l Taxation,2 and Torts,3 and edited Joseph Storys Commentaries on the Constitution4 and William Blackstones Commentary on English Law.5 He also wrote several other books6 and many articles addressed to a general audience. He ceased his career as an author of legal texts in 1884,7 but some of his works, including the treatises on Constitutional Limitations and Torts were kept up by other authors for many years after his death.8 He has been cited hundreds of times by the Supreme Court of the United States9 and countless times by other American courts. Although in his lifetime Cooley was regarded as Americas greatest legal writer, his reputation has not fared well in this century. Chiefly this is so because he was cited, years after his death and decades after he had ceased writing, in Supreme Court opinions10 that were disapproved by

Technology and Civil Litigation in the United States in the Twenty-First Century

The cost of civil litigation is inevitably a cause of chronic dissatisfaction with any legal system. The concern for costs has perhaps been greatest in the United States for several reasons associated with the distinctive role of civil litigation in the nation’s political system centered in what can be described as the Democratic Courthouse. This paper wonders whether the traditions of the American Democratic Courthouse can withstand the shock of contemporary and forthcoming technologies bearing on the methods and costs of litigation, and raises a few doubts on that.

Reflections on the Interface of Treaties and Rules of Procedure: Time for Federal “Long-Arm” Legislation

The Federal Rules of Civil Procedure apply to all litigants in federal courts whatever their nationality. In our view, this is as it should be. That foreign nationals may find civil procedure in the United States onerous is not a consideration that can be assigned weight in the general governance of our courts, which must try to treat all litigants the same. Moreover, civil justice in America is a primary means of law enforcement; those who compete in our national economy ought, except in compelling circumstances, to be subject to the same modes of law enforcement as are their American competitors. Nonetheless, because one size does not always fit all, modest accommodation to the special interest of foreign litigants may be appropriate in the same way that modest accommodation is made to special substantive concerns.1 If and when special accommodation of foreign interests ought be made in the text of procedure rules, who should be responsible for making them? There is a five-tiered process for rulemaking.2 Pursuant to the Rules Enabling Act, amendments to the Rules generally receive first consideration in the Advisory Committee on Civil Rules of the Judicial Conference of the United States; its recommendations are then reviewed by a standing committee on rules; then by the Judicial Conference itself; then promulgated by the Supreme Court, subject to passive review by Congress. None of these organs except Congress seems to us competent to entertain requests from foreign nationals or governments for special consideration in the framing of procedure rules. No part of the judicial branch is fit to consider either the costs or benefits of special exemptions from the burdens and duties of civil litigation. Foreign relations are in the first instance the concern of the Executive Branch; it negotiates treaties. It also participates in court rulemaking through its representation on the Judicial Conference committees. But it does not

Substantive Interests and the Jurisdiction of State Courts

PENNOYER1 indeed is dead.2 The primitive ritual of service of process could not survive as a general solution to the problem of state power over individuals. Committed as we are to the idea that the judicial power should be exercised in a manner that is responsive to the common welfare, we could not suffer the limits of power to be determined irrationally by the random success of process servers. Offering only the virtues of simplicity and economy, the ritualistic method had to yield in order to make the judicial power a sharper and more effective tool with which to pursue our common goals. Although it is therefore desirable to put the ghost to rest, a word of caution seems to be timely.