Past Scholars

The Democratic Virtues of the Civil Jury

Richard Lorren Jolly, Professor of Law, Southwestern Law School

Commentator: Shari Seidman Diamond, Howard J. Trienens Professor of Law and Professor of Psychology, Northwestern University Pritzker School of Law

The United States is in a period of democratic decline, marked by waning commitment to self-governance and declining trust in public institutions. In this moment, the civil jury offers an often-overlooked avenue for democratic renewal. By welcoming laypeople into the courthouse and deputizing them as constitutional actors, civil juries express faith in representative governance and can generate sociopolitical and administrative benefits that extend well beyond dispute resolution.

Professor Richard Lorren Jolly presented his ongoing project examining the jury as a site of democratic participation at a time when other institutions are faltering. In an age of polarization and declining trust, the jury remains one of the few places where ordinary citizens are brought together across lines of politics, race, class and religion to deliberate face-to-face and effectuate outcomes. As Tocqueville observed, “[juries] make all men feel that they have duties toward society and that they take a share in its government.” That insight is, if anything, more urgent today: the jury teaches democratic habits of listening, persuasion and compromise at a time when such habits are eroding.

His talk considered what it would mean to take the civil jury seriously as a democratic institution, and what reforms might be necessary to preserve and strengthen lay participation in civil adjudication for the future.

Biography

Richard Lorren Jolly is a professor of law at Southwestern Law School, where he teaches Torts and Evidence. His scholarship focuses on questions of civil justice, with particular attention to the socio-political and structural role of lay participation in judicial decision-making, especially through juries. In this work, he engages questions of access to justice, the role of Article III courts and the democratic development of the common law, with attention to courts’ procedural and substantive legitimacy. His writing has appeared in the Michigan Law Review, Vanderbilt Law Review, Boston University Law Review, Boston College Law Review, Georgia Law Review, Washington Law Review, Pepperdine Law Review and DePaul Law Review, among others. His forthcoming book, The Law of the American Jury, is under contract with Carolina Academic Press.

Before joining Southwestern, Professor Jolly was a research fellow with the Civil Jury Project at NYU School of Law and with the Civil Justice Research Initiative at UC Berkeley School of Law. Before entering academia, he practiced as a litigation associate at Susman Godfrey and clerked for Judge Deborah Cook of the U.S. Court of Appeals for the Sixth Circuit. Professor Jolly holds degrees from the University of Michigan Law School, the London School of Economics and the University of California, Berkeley.

Professional Conduct Rules as Procedural Gap Filler

Seth Katsuya Endo, Associate Professor of Law Seattle University

The Federal Rules of Civil Procedure are silent about many key management problems faced by federal judges in complex multidistrict (MDL) litigation. Judges treat these “gaps” in the Federal Rules as invitations to invent ad hoc solutions.

Professor Endo argued that judges have failed to appreciate the degree to which the rules of legal ethics speak to these judicial management problems. Properly understood, these rules, he reasoned, place important guardrails around judicial discretion when federal procedure is silent—guardrails that too many judges ignore. Professor Endo demonstrated this claim using one of the most hotly contested questions in MDL litigation—courts' award of lucrative common benefit fees to the lead lawyers in MDL litigation—as a case study.

Biography

Professor Seth Endo writes and teaches on civil procedure and professional responsibility. His scholarship has appeared in theTexas Law Review, Fordham Law Review, Boston College Law Review,and other legal journals. Prior to joining the Seattle University School of Law, he taught at the University of Florida Levin College of Law and in the Lawyering Program at NYU School of Law. His practice experience includes time at Cleary Gottlieb Steen & Hamilton LLP and Demos. Professor Endo also clerked for several judges, including the Honorable RosemaryBarkett, then-circuitjudge of the United States Court of Appeals for the Eleventh Circuit. He received his BA from the University of Chicago and his JD from NYU.

Procedure in Lawyered and Lawyerless Courts

Pamela Bookman, Professor of Law, Fordham University

Courts in the United States may be either federal or state courts, but there is another division in the way that courts operate that is just as salient: those that routinely include lawyers, and those where lawyers are fundamentally absent.

The American justice system includes both “lawyered" and “lawyerless" courts. Lawyered courts are the federal and state courts that hear, for example, class actions and large-scale commercial disputes, and the kinds of cases where lawyers tend to be paid and plentiful. Lawyerless state courts, on the other hand, hear the vast majority of claims filed in this country, including debt collection and eviction cases.

Appreciating this divide reveals similarities and differences between these two types of civil justice in America and illustrates both the promise and limits of focusing on procedural reform as a way of improving the operation of justice. Professor Bookman contended that in some areas, such as ensuring that parties receive notice about lawsuits in which they are involved, be they class actions or eviction proceedings, reform efforts in lawyered and lawyerless courts should be aligned. For instance, both types of courts can benefit from developing technology that notifies parties about legal proceedings. Other examples, however, illuminate where and how lawyers are essential to procedural development and procedural protections. Where lawyers are necessary to develop or reform procedures, injustice in lawyerless courts is a problem in need of a structural solution. Understanding the bulk of state civil courts as lawyerless, therefore, can reveal a need for deeper reform.

Biography

Professor Pamela Bookman is an expert in the fields of civil procedure, contracts, international litigation and arbitration, and conflict of laws. Her scholarship has appeared in the law reviews of Stanford, NYU, and Columbia, as well as in the American Journal of International Law and other leading law journals. Prior to entering academia, Professor Bookman was a counsel in the New York office of Wilmer Cutler Pickering Hale & Dorr LLP, where she represented clients in complex commercial business disputes with a focus on transnational litigation and maintained an active pro bono practice.

Professor Bookman received her BA from Yale University and her JD from the University of Virginia, where she served as an articles editor for the Virginia Law Review and received the Rosenbloom Award for enhancing the academic experience of her fellow students. Following law school, she clerked for Judge Robert D. Sack of the U.S. Court of Appeals for the Second Circuit, President Rosalyn Higgins and Judge Thomas Buergenthal of the International Court of Justice, and Justice Ruth Bader Ginsburg of the U.S. Supreme Court.

The Law of the Back-End

Professor of Law Maria Glover, Georgetown University

Professor Glover’s talk addressed a series of cross-cutting issues that arise in mass litigation after settlements have been reached—the “back end” of mass litigation. Settlements have long been described as the dominant endgame of mass litigation. Professor Glover argues, however, that for a great many mass litigations, including those regarding NFL Concussions, the BP Oil Spill, RoundUp, Volkswagen Diesel Emissions, In re National Prescription Opiates, Asbestos, and many more, settlement is just the beginning.

Prior to finalizing mass litigation settlements, our system of civil justice relies on a number of formalities that create, facilitate, and harness transparency, adversarialism, and the development of law to protect parties, produce fair and reasonable settlements, and to achieve global peace. Once mass litigation moves from the period of establishing liability to the period of administration of claims, however, these critical elements of civil justice—transparency, adversarialism, and the development of law—break down. Professor Glover calls for the development of “Back-End Law” for mass litigation settlement, law that would create transparency, introduce and harness adversarialism, and generate needed development of precedent in this critical area of civil justice.

Biography

Professor Glover is an expert in complex litigation and mass torts, aggregate dispute resolution, civil procedure, civil settlements, and the intersection between private and public regulation. Her work has been published in the NYU Journal of Law & Business and the law reviews of Yale, Stanford, NYU, University of Pennsylvania, Vanderbilt, William and Mary, and Fordham, among others. In addition to publications in leading law reviews and business journals, her work has been featured in The Washington Post, The Los Angeles Times, Consumer Reports, Reuters, The Hill, Bloomberg Law, among other media outlets, and has been cited by the U.S. Supreme Court.

The first edition of her casebook, CIVIL PROCEDURE, with Howard Erichson was published in 2020 by Wolters Kluwer. Professor Glover also is co-authoring a casebook, AGGREGATE LTIGATION AND DISPUTE RESOLUTION, with Robert Klonoff, D. Theodore Rave and Elizabeth Cabraser, which will be published by Thompson West in 2022.

In September 2021, Professor Glover combined the insights and connections from her work in complex litigation with years-long pro bono work for substance use disorder recovery centers in East Tennessee (where she grew up) to host the Opioid Litigation Summit at Georgetown University Law Center. This Summit was held at a critical juncture in the overdose crisis, as drug overdoses are taking more lives than ever, and litigation against opioid manufacturers is in courtrooms and at settlement tables across the nation. The Summit was the first of its kind: It convened key experts in comprehensive, divergent, and cross-cutting fields—complex litigation, public health and policy, state and local government, members of the Biden-Harris Administration, and people in recovery—for a series of dynamic strategy sessions on maximizing opioid settlement funds to save lives and respond to the overdose crisis.

Before coming to Georgetown in 2012, Professor Glover was a Climenko Fellow and Lecturer on Law at Harvard Law School. Previously, she clerked for J. Harvie Wilkinson III of the United States Court of Appeals for the Fourth Circuit and practiced in the Supreme Court and Appellate Practice Group at Mayer Brown LLP in Washington, DC. She is a graduate of Vanderbilt Law School, where she was senior article editor of the Vanderbilt Law Review and was awarded the Cecil D. Branstetter Litigation and Dispute Resolution Program Award, the Robert F. Jackson Memorial Prize for the highest scholastic average in the law class, the Law Review Editor's Award, and the First Year Mock Trial Best Oralist Award.

MDL as Category

Professor of Law Zachary Clopton, Northwestern University

• Fireside Chat with DePaul Professor of Law Wendy Epstein

Professor Clopton's talk addressed reform proposals directed at multidistrict litigation (MDL). MDL dominates the federal civil docket and has been used to consolidate hundreds of thousands of cases, including litigation regarding asbestos, the BP oil spill, Johnson & Johnson baby powder, NFL concussions, opioids and more. Many reform proposals treat MDL as a uniform category of cases, but Professor Clopton argues that this is a mistake. MDL is not a uniform category of large civil cases demanding one-size-fits-all procedure. To treat MDL as such would create incentives for parties to “procedure shop” into or out of MDL, imperiling horizontal equity and inviting abuse.

Instead, Professor Clopton calls for MDL reformers to focus on the Judicial Panel on Multidistrict Litigation, a group of seven judges handpicked by the Chief Justice with nearly unconstrained authority to decide whether to consolidate cases and which federal judge will hear them. Acknowledging the disparate nature of MDL cases suggests that, for many MDLs, the Panel need not have such wide discretion.

Biography

Professor Clopton's scholarship explores the role of courts and litigation in solving complex problems. In light of recent developments that have undercut court access and private enforcement in federal courts, Professor Clopton's work has drawn attention from state courts, public (governmental) enforcement, and newer forms of mass dispute resolution.

Prior to joining the faculty at Northwestern, Professor Clopton was an associate professor at Cornell University. He also clerked for the Honorable Diane Wood, U.S. Court of Appeals for the Seventh Circuit, served as an Assistant United States Attorney for the Northern District of Illinois, including as a member of the NATO Chicago Summit Task Force, and worked in the national security group at Wilmer Hale in Washington, D.C. He is a graduate of Harvard Law School (JD), Cambridge University (MPhil in International Relations), where he was a Gates Foundation Scholar, and Yale University (BA in History and Political Science).