Adversarial Justice, Professional Responsibility, and the New Federal Discovery Rules

Adversarial Justice, Professional Responsibility, and the New Federal Discovery Rules
Author: Linda S. Mullenix
Publisher:
Total Pages: 0
Release: 2013
Genre:
ISBN:

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There can be little doubt that the most controversial amendment among the 1993 civil rule revisions is the new Rule 26(a) provision requiring early mandatory disclosure of discovery information. As the draft rule worked its way through the Advisory Committee on Civil Rules, large segments of the practicing bar assiduously opposed the new disclosure regime but subsequently failed to scuttle the new Rules in Congress. Justices Scalia, Thomas, and Souter sympathize with opponents of the new discovery provisions. In a dissenting statement to the Supreme Court's approval of the 1993 Rules package, Justice Scalia enumerated four major objections to the new discovery rules. First, Justice Scalia argued that the new discovery requirements would not streamline the litigation process, but would probably increase burdens by adding a further layer of discovery. Furthermore, the Rule's vague disclosure standard would increase satellite litigation over interpretive questions such as what information is “relevant,” what constitutes “disputed facts,” and whether each side adequately complied with the Rule. Second, Justice Scalia objected that the new federal mandatory disclosure rule was imprudent and premature in light of local experimentation under Civil Justice Reform Act plans. He thought it unwise “to subject the entire federal judicial system at once to an extreme, costly, and essentially untested revision of a major component of civil litigation.” Third, Justice Scalia expressed concern that “this revision has been recommended in the face of nearly universal criticism from every conceivable sector of our judicial system, including judges, practitioners, litigants, academics, public interest groups, and national, state and local bar and professional associations.” Justice Scalia's fourth criticism was the dissenters' most far-reaching: He wrote that the new disclosure regime would place “an intolerable strain” upon lawyers' professional responsibilities that would counter the American judicial system of adversarial litigation. This concern represented the dissenters' most apocalyptic vision of the amended Rules, striking at the very core of the American philosophy of dispute resolution. Of all the dissenters' objections, this professional responsibility concern is the most interesting. The experience of federal practitioners in the next few years will reveal whether the first three complaints-that new Rule 26(a) is burdensome, that it is premature, and that the revision should not have been promulgated over the objections of the legal community-are warranted. In the same way that a decade of Rule 11 litigation revealed the fault lines in that Rule's revision, another decade will test the dissenters' hypothesized problems with the new discovery regime. But the objection that the new disclosure rules will strain lawyers' professional responsibility duties and fundamentally alter American jurisprudence is sweeping and stunning, if not subtle. If we are at the edge of a paradigm shift, will new Rule 26(a) be responsible? Has Justice Scalia identified the central issue relating to discovery reform, or has he merely stirred alarmist fears with a hyperbolic forecast? This Article focuses on Justice Scalia's concern that new Rule 26(a) creates a tension with lawyers' professional responsibility obligations and therefore that the Rule will undermine, if not radically alter, the traditional American system of adversarial justice. If federal judges interpret and apply the new discovery rules as compromising the attorney-client privilege or attorney work-product doctrine, then the new discovery regime will fundamentally change the adversarial system. However, in the absence of such a radical departure from traditional doctrine, Justice Scalia's prediction will prove to be more overheated than necessary.

Special Advocates in the Adversarial System

Special Advocates in the Adversarial System
Author: John Jackson
Publisher: Routledge
Total Pages: 240
Release: 2019-07-24
Genre: Law
ISBN: 1315278758

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The last twenty years have seen an unprecedented rise in the use of secret courts or ‘closed material proceedings’ largely brought about in response to the need to protect intelligence sources in the fight against terrorism. This has called into question the commitment of legal systems to long-cherished principles of adversarial justice and due process. Foremost among the measures designed to minimise the prejudice caused to parties who have been excluded from such proceedings has been the use of ‘special advocates’ who are given access to sensitive national security material and can make representations to the court on behalf of excluded parties. Special advocates are now deployed across a range of administrative, civil and criminal proceedings in many common law jurisdictions including the UK, Canada, New Zealand, Hong Kong and Australia. This book analyses the professional services special advocates offer across a range of different types of closed proceedings. Drawing on extensive interviews with special advocates and with lawyers and judges who have worked with them, the book examines the manner in which special advocates are appointed and supported, how their position differs from that of ordinary counsel within the adversarial system, and the challenges they face in the work that they do. Comparisons are made between different special advocate systems and with other models of security-cleared counsel, including that used in the United States, to consider what changes might be made to strengthen their adversarial role in closed proceedings. In making an assessment of the future of special advocacy, the book argues that there is a need to reconceptualise the unique role that special advocates play in the administration of justice.

The Changing Face of U.S. Courts

The Changing Face of U.S. Courts
Author:
Publisher: DIANE Publishing
Total Pages: 48
Release: 2003
Genre: Courts
ISBN: 1428966870

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Rebooting Justice

Rebooting Justice
Author: Benjamin H. Barton
Publisher: Encounter Books
Total Pages: 198
Release: 2017-08-01
Genre: Law
ISBN: 1594039348

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America is a nation founded on justice and the rule of law. But our laws are too complex, and legal advice too expensive, for poor and even middle-class Americans to get help and vindicate their rights. Criminal defendants facing jail time may receive an appointed lawyer who is juggling hundreds of cases and immediately urges them to plead guilty. Civil litigants are even worse off; usually, they get no help at all navigating the maze of technical procedures and rules. The same is true of those seeking legal advice, like planning a will or negotiating an employment contract. Rebooting Justice presents a novel response to longstanding problems. The answer is to use technology and procedural innovation to simplify and change the process itself. In the civil and criminal courts where ordinary Americans appear the most, we should streamline complex procedures and assume that parties will not have a lawyer, rather than the other way around. We need a cheaper, simpler, faster justice system to control costs. We cannot untie the Gordian knot by adding more strands of rope; we need to cut it, to simplify it.

Non-Adversarial Justice

Non-Adversarial Justice
Author: Michael King
Publisher: Federation Press
Total Pages: 353
Release: 2014-07-04
Genre: Law
ISBN: 1760020222

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This book outlines key aspects of the use of non-adversarial practices in the Australian justice system with reference to similar developments in the United States, Canada, New Zealand and the United Kingdom. It examines in detail non-adversarial theories and practices such as therapeutic jurisprudence, restorative justice, preventive law, creative problem solving, holistic law, appropriate or alternative dispute resolution, collaborative law, problem-oriented courts, diversion programs, indigenous courts, coroners courts and managerial and administrative procedures.

The Changing Face of Special Educational Needs

The Changing Face of Special Educational Needs
Author: Alison Ekins
Publisher: Routledge
Total Pages: 210
Release: 2015-05-15
Genre: Education
ISBN: 1317484665

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Fully revised with the requirements of the 2014 new SEN Code of Practice, this second edition of The Changing Face of Special Educational Needs shows teachers, SENCOs and students in teacher training how to respond to the rapidly changing context of special education. This highly practical and accessible text unlocks the often confusing field of special education provision in schools today by: Summarising and clarifying new policy directions as they emerge, in light of the new SEN Code of Practice Suggesting clear, practical activities to bring the theory to life, helping practitioners to review and reflect upon their work; Encouraging critical reflection about existing systems within the school context, considering whether these will remain appropriate and ‘fit for purpose’; Giving opportunities for teachers, SENCOs and senior leaders to contextualise the new changes in terms of the implications for practice in their own school. Including a new chapter on Using Technologies to Support the Development of Inclusive Practices, this text is packed with activities, case studies and points for reflection. It will help the teacher, SENCO, senior leader or advisor to make sense of the rapid pace of change of policy and terminology related to SEN and supports readers in a positive way, emphasising the exciting opportunities that these changes will provide for developing new, innovative and creative working practices. This book will also be essential reading for all SENCOs completing the National Award for SEN Coordination.

Just Emotions

Just Emotions
Author: Meredith Rossner
Publisher: OUP Oxford
Total Pages: 0
Release: 2013-10
Genre: Political Science
ISBN: 9780199655045

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Analyses how restorative justice conferences work as a unique form of justice ritual, with a pioneering new approach to the micro-level study of conferences and recommendations to improve the practice. It examines both failed and successful rituals, and provides a statistical model of the ritual elements and how these may impact reoffending.

Adversarial Legalism

Adversarial Legalism
Author: Robert A. KAGAN
Publisher: Harvard University Press
Total Pages: 353
Release: 2009-06-30
Genre: Law
ISBN: 0674039270

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Robert Kagan examines the origins and consequences of the American system of "adversarial legalism". This study aims to deepen our understanding of law and its relationship to politics, and raises questions about the future of the American legal system.

Reforming Juvenile Justice

Reforming Juvenile Justice
Author: National Research Council
Publisher: National Academies Press
Total Pages: 463
Release: 2013-05-22
Genre: Law
ISBN: 0309278937

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Adolescence is a distinct, yet transient, period of development between childhood and adulthood characterized by increased experimentation and risk-taking, a tendency to discount long-term consequences, and heightened sensitivity to peers and other social influences. A key function of adolescence is developing an integrated sense of self, including individualization, separation from parents, and personal identity. Experimentation and novelty-seeking behavior, such as alcohol and drug use, unsafe sex, and reckless driving, are thought to serve a number of adaptive functions despite their risks. Research indicates that for most youth, the period of risky experimentation does not extend beyond adolescence, ceasing as identity becomes settled with maturity. Much adolescent involvement in criminal activity is part of the normal developmental process of identity formation and most adolescents will mature out of these tendencies. Evidence of significant changes in brain structure and function during adolescence strongly suggests that these cognitive tendencies characteristic of adolescents are associated with biological immaturity of the brain and with an imbalance among developing brain systems. This imbalance model implies dual systems: one involved in cognitive and behavioral control and one involved in socio-emotional processes. Accordingly adolescents lack mature capacity for self-regulations because the brain system that influences pleasure-seeking and emotional reactivity develops more rapidly than the brain system that supports self-control. This knowledge of adolescent development has underscored important differences between adults and adolescents with direct bearing on the design and operation of the justice system, raising doubts about the core assumptions driving the criminalization of juvenile justice policy in the late decades of the 20th century. It was in this context that the Office of Juvenile Justice and Delinquency Prevention (OJJDP) asked the National Research Council to convene a committee to conduct a study of juvenile justice reform. The goal of Reforming Juvenile Justice: A Developmental Approach was to review recent advances in behavioral and neuroscience research and draw out the implications of this knowledge for juvenile justice reform, to assess the new generation of reform activities occurring in the United States, and to assess the performance of OJJDP in carrying out its statutory mission as well as its potential role in supporting scientifically based reform efforts.