News

     CCL President Robert S. Peck finished two days of meetings of the American Bar Association's Tort Trial and Insurance Practice Section (TIPS) in Baltimore. The council is the section's governing body. Peck has served on the TIPS Council for 15 years and will be ending his tenure on it in August. During the meeting, Peck recounted his representation in the ABA House of Delegates during its February meeting and gave a preview of issues that will be raised at its August meeting.

     CCL President Robert S. Peck participated in the Spring 2022 meeting of the Legal Affairs Committee of the American Association for Justice, where he spoke about his recent argument in the Ohio Supreme Court in Brandt v. Pompa, a constitutional challenge to the damage cap applicable to personal-injury lawsuits.

      In Brandt, under a state statute, the trial court reduced a $20 million jury verdict to $250,000 where the plaintiff had been the victim, as an eleven- and twelve-year-old, of more than 30 sexual assaults by a friend's father, who had drugged her during sleepovers. Peck argued that the statute violated the state constitutional right to trial by jury, but also was unconstitutional as applied to Brandt because the legislature had no justification for treating her differently from those suffering permanent physical injuries, whose damages are not capped.

      The case, argued in late March, is currently under advisement, with a decision expected before the end of the year.

      CCL President Robert S. Peck bemoaned the theater and lack of substance in the Senate Judiciary Committee's hearing on the nomination of Judge Ketanji Brown Jackson to the Supreme Court in an Appellate Advocacy blogpost.

       Reviewing some of the questions asked, Peck gave alternative "tongue-in-cheek" answers in place of the more appropriate ones given by Judge Jackson, who demonstrated an unflappable temperament in the face of exceedingly silly and posturing questions. The post can be found at "Tongue-in-Cheek Answers to Bizarre Questions."

     CCL President Robert S. Peck discussed the continuing impact of political outlooks on appellate decision-making in a post on the Appellate Advocacy Blog of the Law Professor's Blog Network.

     Even so, the theory of the law is that logic and reason control outcomes -- and usually it does, as evidenced by the frequency of 9-0 decisions on an ideologically diverse U.S. Supreme Court. However, on hot-button issues, where either a statute or the Constitution provides no singular answer, the post explains that judges imbue their decisions with the lessons of experience or past determinations that result in diverse views when reading the same language, precedents, and arguments. The post suggests that, while this type of political-outlook influence has always been true, the frequency of it seems to be increasing as the division of judicial philosophies often seem to reflect diverse political views.

     The post can be viewed at The Logic of the Courtroom, the Skewing Influence of Politics.

     Critics of the nomination of Judge Ketanji Brown Jackson have leveled several poorly taken criticisms to score political points against her confirmation. One of the many arguments made is that she may not be the "best qualified" person to serve on the Court, despite her sterling credentials. In a post for the Appellate Advocacy Blog of the Law Professors Blog Network, CCL President Robert S. Peck explains why the critique is without any force.

      His post shows that no objective criteria exists to determine the most qualified potential nominee. In addition, he demonstrates that some of the most celebrated of Supreme Court justices were not considered the most qualified candidate for a seat, yet history has vindicated their selection. In addition, he notes one justice who was widely considered the most qualified turned out to be a dud.

      The post can be found here.

     Arguing that exempting "low-value" speech that causes emotional distress from constitutional protection will often provide a weapon in the hands of those in the majority against dissenters, CCL President Robert S. Peck took up a debate with a fellow blogger on the Appellate Advocacy Blog, a feature of the Law Professor Blogs Network. 

     A week earlier, Adam Lamparello, an associate professor at Indiana Tech Law School, provocatively advocated that brutalizing speech should be subject to regulation. Peck responded by describing instances where anti-racism demonstrations were the object of attempted censorship because of the discomfort it transmits to those in power who may not be combating it. Peck noted that today's controversies over critical race theory and LBGQT expressions arise because majorities believe that their communication constitutes an attack on traditional values.

     Peck also pointed out that free speech has a safety-valve function that allows the expression of disturbing thoughts so that it does not retreat to the underground, where it can fester unimpaired by counter-speech and emerge surprisingly and in more virulent form. 

  In a post on the Appellate Advocacy Blog, CCL President Robert S. Peck wrote about the uncertainty counsel often faces about whether arguments will be in-person or remote during the COVID-19 pandemic. While preparation remains largely the same, the dynamics vary between the two, which he demonstrates through several anecdotes. The post is Arguing in the Age of COVID. 

     In a post on the Appellate Advocacy Blog, CCL President welcomed readers to 2022 with some predictions about high-profile cases likely to be resolved in 2022. The post is available here: Welcome to 2022.

    In his latest post on the Appellate Advocacy Blog, CCL President provides some suggestions when it appears an appeal was derailed by a new decision that somehow fails to account for a contrary precedent because neither the court nor the advocates apparently found the earlier case. What Do You Do When a Superior Court Misses a Conflicting Precedent.

     Highlighting some of its achievements of the past six months, the Civil Justice Research Initiative (CJRI) at Berkeley Law School began its biennial advisory board meeting with a discussion of key findings in a paper on civil juries, co-authored by CCL President Robert S. Peck, along with law professors Richard Jolly and Valerie Hans. The paper, published in November, provided a history of civil juries, a review of key precedents on the use of juries, and empirical data on the negligible number of jury trials being held, while studies uniformly confirm that jurors do a good job. It also contains recommendations on how to revive this necessary institution.

    All three authors are members of the advisory board at CJRI, an initiative started by Berkeley Law Dean Erwin Chemerinsky.