Bloomberg Law Publishes Co-Authored Piece on Jury Trials

December 21st, 2022

     Today, Bloomberg Law published an opinion piece co-authored by CCL President Robert S. Peck on revitalizing the use of jury trials as a means to regain confidence in the courts. 

     The article, Fixing the Public's Confidence in the Courts Starts with Juries, recognizes the continued downward slide of public confidence in the courts, as well as the silver lining that respect for juries remains high. It further notes that jury trials in civil cases have become exceedingly rare and must be restored if the courts are to maintain the public's respect. 

      The article was co-authored with law professors Richard Jolly of Southwestern Law School and Valerie Hans of Cornell Law School.

House Judiciary Committee Holds Hearing on Supreme Court Ethical Issues

December 8th, 2022

     The full Judiciary Committee of the U.S. House of Representatives heard testimony from four witnesses in its investigation of whether the Supreme Court needs a set of ethics rules, including from CCL client Rev. Robert Schenck. The hearing took its name from Rev. Schenck's earlier activities, now disavowed, and revealed in a New York Times story. It was called, "Undue Influence: Operation Higher Court and Politicking at SCOTUS."

      The Supreme Court is not subject to the same ethical rules as other federal judges, though it has said that it consults the rules applicable to other federal judges. A New York Times story about how Rev. Schenck and his former organization's supporters ingratiated themselves to some of the justices through large donations to the Supreme Court Historical Society and how they received advanced word of the result and authorship of the Hobby Lobby case triggered the December 8 hearing. CCL's Peck accompanied Rev. Schenck to the hearing to provide legal advice during questioning from the committee members.

       In addition to Rev. Schenck, who provided a factual account of his prior organization's activities, the Committee heard testimony from:

  • Caroline Fredrickson, a visiting professor at Georgetown Law School and a member of the Presidential Commission on the Supreme Court of the United States, who spoke about the need for ethics rules and the ways it could be accomplished;
  • Mark R. Paoletta, a partner at Schaerr Jaffe LLP, who made a partisan attack on the hearing and on Democratic appointees to the Court; and,
  • Donald K. Sherman, Senior Vice President and Chief Counsel for Citizens for Responsibility and Ethics in Washington (CREW), who spoke about the need for ethical rules regardless of party of appointment or ideology. 

Peck Writes "Two Overlooked Tips for Writing Briefs and Arguing Cases"

November 27th, 2022

      In his latest posting on the Appellate Advocacy Blog, CCL President Robert S. Peck suggests "Two Overlooked Tips for Writing Briefs and Arguing Cases"

      The first focuses on maintaining credibility. Too often, an advocate pushes the boundaries of a argument, overstating a proposition or the holding of a case, and reaches a breaking point that ultimately hurts the advocate's credibility on another issue or argument that a more supportable basis than the court might realize. Having undermined credibility on the earlier point, the advocate loses an opportunity to bring the court along on a more novel but viable assertion.

      A second tip reminds appellate counsel that judges are generalists and may not have background on the issue brought before them. Assuming that some seemingly basic aspects of the law on a particular issue are well known may do a disservice to the case. The advocate who practices in that area may find the point somewhat second-nature, but to someone outside that field a short description of the applicable legal principle can illuminate the more complex point.

Georgia Law Review Publishes Article on Jury Trials and Democratic Renewal

November 21st, 2022

     The Georgia Law Review has published Democratic Renewal and the Civil Jury,. an article that argues that reviving the use of civil juries can contribute to a renewal of aspects of our democracy that have fallen into disrepair. The article was written by Professor Richard L. Jolly of Southwestern Law School, Professor Valerie P. Hans of Cornell Law School, and CCL President Robert S. Peck.

     The article recognizes that civil jury trials have become rare events, especially after the COVID-19 pandemic affected in-person courtroom events. Yet, jury trials remain a constitutionally guaranteed right, one that the Framers of the Constitution regarded as essential. Yet, from the beginning, trusting laypeople to determine the facts of a dispute was the subject of derision by elites. Their critique, however, is misplaced. Juries do a remarkably good job of sifting through the evidence and determining the facts. For that reason, providing an educational outlet for participation in the democratic aspects of the judicial system can help to renew commitment to democracy and its ideals, the article contends.

     The article also offers six steps that should be taken to revive jury trials:

1.  Remove obstacles to jury trials, such as the requirement that a jury trial be requested at the outset, rather than default to a judge-tried case;

2.  Remove damage caps, which revise the jury's verdict to legislatively;

3.  Expand procedural innovations, such as expedited trials;

4.  Ensure representative juries; 

5.  Return to 12-member juries; and,

6.  Adopt active jury reforms, such as providing instructions at the outset and permitting jury questions.

CCL President Moderates "Conversation with the Chief Justices"

November 17th, 2022

     The Conference of Chief Justices met in Washington, as part of activities sponsored by the National Center for State Courts (NCSC). One highlight of the meeting is the "Conversation with the Chief Justices" of the states' highest courts. As he has for more than a decade, CCL President Robert S. Peck moderated the conversation, in which more than 20 chief justices participated. Invitees to the conversation include members of the NCSC lawyers and corporate counsel committees. The event is capped the same evening by a dinner at the U.S. Supreme Court, where a state judge doing innovative work is honored with the Rehnquist Award.

Facts Matter in Cases

November 13th, 2022

     CCL President Robert S. Peck explains why facts matter in his latest posting on the Appellate Advocacy Blog, a part of the Law Professor Blogs Network. In A Focus on the Facts, Peck uses the very different factual contexts utilized by the parties in Sackett v. EPA, No. 21-454, pending in the U.S. Supreme Court to explain why law goes hand in hand with potentially sympathetic facts. 

     In Sackett, the Court will determine the meaning of "wetland," for purposes of the EPA's regulatory authority. Although this might seem like a straightforward question that should not be influenced by factual disputes, both parties have sought to portray the other's position as insensible based on the facts. The Sacketts tell a tale of a homeowner seeking to build a modest home on their property, which is zoned as residential, and for which they face "crushing fines" for interfering with navigable waters, even though there are no streams, rivers, lakes, or other body of water on their property. The EPA, on the other hand, says that the Sacketts have a commercial construction and excavation business and are well aware that their property is part of a fen that drains under the surface into wetlands and a lake. 

      The Supreme Court, likely to be split on the issue, will issue an opinion before the end of June. However, it seems almost certain that the majority and the dissenters are likely to adopt the facts that suit their position, giving readers the same, very different rendition of what is at stake.

CCL's Peck Participates in ALI Meeting on Tort Remedies

November 11th, 2022

     CCL's Peck discussed the standards employed by courts in determining punitive damages and when the jury's determination is deemed "grossly excessive" at a meeting in Philadelphia of the American Law Institute. The meeting was part of a decades-long process of developing a new Restatement on Torts to reflect developments in the law since the last project of this kind. Restatements are considered authoritative explanations of the law and developments.

     In the meeting of members who are part of the consultative group for development of this restatement, punitive damages became a central issue. Much of the discussion revolved around what the U.S. Supreme Court said in its 2007 decision in Philip Morris v. Williams, which established, for the first time, that a defendant had a right to a jury instruction, when properly requested, that limited some considerations in assessing punitive damages to the harm visited upon the plaintiff, even if the primary determinant, reprehensibility, could consider harm or potential harm to others. When the 5-4 decision was handed down, the dissenters, who included an unusual combination of Justices Ginsburg, Stevens, Scalia, and Thomas, found the type of instruction authorized to make little sense.

     Peck was able to speak especially knowledgeably about the case because he argued in the Supreme Court both for the 2007 decision and a subsequent return hearing that resulted in the Court allowing a 97:1 ratio to stand in 2009 after the Oregon Supreme Court held that Philip Morris had not properly requested the jury instruction.

     Revisions to the draft discussed at the Philadelphia meeting will occur.

Never Ignore the Facts in Appellate Advocacy, CCL President Peck Advises

October 30th, 2022

    Facts can sometimes make or break as case, CCL President Robert S. Peck advises in a post on the Appellate Advocacy Blog. In A Focus on the Facts, Peck relates two experiences in cases where the facts drove the law and made all the difference.

     The Appellate Advocacy Blog is a part of the Law Professor Blogs Network. Peck is a contributing editor of the blog and posts biweekly.

Peck Posts Blog on the Use of History in Constitutional Litigation

October 16th, 2022

    In a new blog post, CCL President Robert S. Peck both critiques the Supreme Court's new approach to historical practice as the basis for constitutional analysis, showing the illogical uses that lower courts have now adopted.

     In its end of term decision in N.Y. State Rifle and Pistol Association v. Bruen, the Supreme Court struck down a 1915 NY gun regulation law as inconsistent with historic traditions. Although the Supreme Court recognized that regulations could be imposed for "sensitive areas," some lower courts have now struck down other regulations because historic traditions were not evident that would allow restrictions based on being under 21, past criminal activity, or even at summer camps, which did not exist at the time the Second Amendment was ratified.

     The blog post advises appellate advocates about framing arguments in this new world of constitutional analysis. The post can be found at New World.

CCL President Helps Kick Off Judicial Conference on Civil Justice Issues

October 10th, 2022

     Speaking on the opening panel for the 16th Annual Judicial Symposium on Civil Justice Issues, CCL President Robert S. Peck highlighted upcoming U.S. Supreme Court cases and other issues coming down the road that will likely affect how judges look at key issues. More than 100 judges from around the country attended the event held at George Mason University's Antonin Scalia Law School.

     The opening panel, moderated by Justice William Mims of the Virginia Supreme Court, also featured Geoffrey Wyatt, a partner at the Skadden Arps law firm. Video of the panel, as well as the other panels, is available at 16th Annual Judicial Conference on Civil Justice Issues.