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California Law Review | 1981

Communicating with Juries: Problems and Remedies

William W. Schwarzer

Two hundred years ago, Sir William Blackstone described trial by jury as the grand bulwark of [our] liberties . . . I and the most transcendent privilege which any subject can enjoy, or wish for.2 That conception remains a cornerstone of the administration of justice in our country. There is growing concern, however, that jury trials as they are now conducted cannot be depended on to produce informed and hence fair verdicts.3 Because the law has become more complex and trials more lengthy, the issues submitted to jurors are often technical and foreign to their experience. It has therefore become much more difficult for juries to return informed verdicts. As a result, the jurys capacity to serve as the repository of the peoples sense of justice, reason, and fair play is being questioned.


Federal Sentencing Reporter | 1991

Judicial Discretion in Sentencing

William W. Schwarzer

The role of judicial discretion in the sentencing process is a fundamental and inescapable issue. It tends to become obscured by other issues, such as determinancy and penal policies. When it does come to the publics attention, it is usually in a context of controversy over what a judge has done. The public perception of judicial discretion is almost invariably skewed. For all those reasons, it is important to focus on that issue. A comprehensive discussion of judicial discretion would take more time than is available. I therefore want to narrow the focus to consider what


American Journal of Comparative Law | 1997

Comment on Burbank and Silberman

William W. Schwarzer

The paper focuses on reform in the federal courts. That is not inappropriate since historically the federal courts have been the lead dog on the sled of reform. One should have in mind, however, that some 98% of all civil litigation in the United States takes place in the state courts. And state court systems tend to look less to the federal courts for leadership in reform now than they did in the past. The reason is that civil justice reform has become politicized and contentious. There was a time when the federal rules were drafted and revised by what could be called a group of wise men-lawyers and judges above the fray who looked dispassionately at the justice process and sought out what was best for it. But rule making is no longer an Olympian exercise and the rulemakers are no longer viewed as omniscient and detached. Much is at stake for particular litigation interests in the shaping of rules of procedure, and with the democratization of the rule making process, those interests have access and work to influence it. Special interests of various sortsmanufacturers, small business, insurance companies, civil rights lawyers, class action lawyers, personal injury lawyers, commercial lawyers and, not to be ignored, the judges themselves, and even Congress-confront each other. The product that emerges will not necessarily be a model for the highest and best form of administration of justice. Meanwhile states are pursuing their own initiatives: California, for example, has successfully implemented a fast track system, and


Michigan Law Review | 1996

Structuring Multiclaim Litigation: Should Rule 23 Be Revised?

William W. Schwarzer

Class actions have become a prominent feature of the litigation landscape. The class-action device is now employed in a wide variety of types of litigation, including consumer, securities, antitrust, employment, civil rights, and institutional-reform litigation, and increasingly in mass-accident, product-liability, and toxic-tort litigation. But as class actions have become more prominent, they also have come under increasing scrutiny because of their impact on parties and others and because of the magnitude of the stakes. As courts confront the difficult issues class actions raise, scholarly comment and criticism abound, and political controversy rages. All of this has led to close examination of the fountainhead of class-action jurisprudence, Rule 23 of the Federal Rules of Civil Procedure, and has raised the question whether it should be revised. The question can be approached from diverse perspectives. For example, those whose interests are in mass-tort litigation likely will take an entirely different approach from others who are interested in consumer litigation or civil rights litigation or securities litigation. As Professor Edward Cooper has observed, the arguments for and against amending Rule 23 rest on assumptions about how well it works, or does not work, now.1 But judgments about how well the Rule works necessarily turn on ones expectations, and the expectations of those litigating in different fields differ greatly. The question whether Rule 23 should be revised therefore is not susceptible to a global answer unless revision is stylistic only, limited to making the text more elegant and even stylistic revision is likely to have some substantive impact, even if unintended. But if the argument for revision is that the Rule is in some respect deficient and should be made to work better, one must begin by answering the question how it should work. That in turn depends on defining the Rules purpose what it is intended to accomplish.


California Law Review | 1983

Court Reform on Trial

William W. Schwarzer; Malcolm M Feeley


Southern California Law Review | 1992

Sentencing Guidelines and Mandatory Minimums: Mixing Apples and Oranges

William W. Schwarzer


Judicature | 1992

Fee-shifting Offers of Judgment–An Approach to Reducing the Cost of Litigation

William W. Schwarzer


University of Pittsburgh Law Review | 1989

The Federal Rules, the Adversary Process, and Discovery Reform

William W. Schwarzer


Judicature | 1978

Managing Civil Litigation: The Trial Judge's Role

William W. Schwarzer


Cornell Law Review | 1995

Settlement of Mass Tort Class Actions: Order Out of Chaos

William W. Schwarzer

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