News

     The Civil Justice Research Initiative at Berkeley Law School published a new paper on reviving the civil jury that describes the history, legal issues, and empirical research on civil juries with an eye toward making better and greater use of juries. The paper was written by Richard Jolly of Southwestern Law School, Valerie Hans of Cornell Law School, and CCL's Robert S. Peck.

      The paper shows that juries are an essential part of American democracy, are often subjected to unwarranted disrespect, and are very good at doing their assigned tasks according to the best available empirical research. The paper, "The Civil Jury: Reviving an American Institution," concludes with recommendations that the option of a jury trial should be the default rule, rather than merely available upon request; that damage caps be eliminated; that expanded expedited jury trials using 12 jurors take place; that more be done to assure representative juries; that 12-person juries be the norm; and that active measures, such as permitting jury notetaking and questions, be adopted.

     The paper is available at The Civil Jury: Reviving an American Institution.

    In a post to the Appellate Advocacy blog, CCL President Robert S. Peck discusses some of the tips that judges and practitioners offered on a webinar sponsored by the U.S. Court of Appeals for the Fourth Circuit. The blog is part of the law professor network. Peck posts on Sundays every two weeks. His latest post can be found at Tips for Appellate Practice, Fourth Circuit Edition, Part 1.

     In a post on the Appellate Advocacy Blog, CCL President Robert S. Peck wrote about different strategies for arguing against the application of adverse in-circuit precedent. 

     The blog post is available at What To Do When Faced With Adverse In-Circuit Precedent.

   In Gustafson v. Springfield, Inc., the Pennsylvania Superior Court will re-hear en banc a challenge to the application and constitutionality of the federal Protection of Commerce in Arms Act (PLCAA), a law designed to provide gun manufacturers and retailers with immunity from state common-law causes of action. An earlier panel of the court had struck down the federal statute for overstepping Congress's Commerce Clause powers and violating Tenth Amendment federalism guarantees. 

    Gustafson is a products liability action that asserts the gun manufacturer was responsible for the death of a youth because the gun lacked certain safety features. The manufacturer successfully moved to dismiss the case, asserting that it was protected by PLCAA. On August 25, the court will re-hear arguments about PLCAA's applicability and constitutionality. The case will be argued by Jonathan Lowy, legal director of Brady United. In preparation for the argument, Lowy underwent a practice round with CCL's Robert S. Peck, along with two other frequent U.S. Supreme Court practitioners. 

     With the filing of three briefs in a 10-day period, all requesting the Supreme Court overrule prior precedent, CCL President Robert S. Peck's biweekly contribution to the Appellate Advocacy Blog focused on how each brief made its argument that the existing precedents had proven unworkable and the lessons that could be learned from each.

    The Appellate Advocacy Blog is a part of the Law Professors Blog Network. Peck's posting can be found at Requesting Overturning of Precedent.

      CCL's Robert S. Peck attended the Council meetings of the ABA's Tort Trial and Insurance Practice Section (TIPS) and its House of Delegates meetings during a hybrid convention. The meetings set policy for the TIPS and the ABA as a whole.

      Peck is a member of the TIPS Council and one of the TIPS representatives to the House of Delegates.

     In a post on the Appellate Advocacy Blog, CCL's Robert Peck discusses the value of rhetoric in appellate advocacy: appellate_advocacy/2021/08/do-rhetorical-flourishes-have-a-place-in-judicial-opinions-or-appellate-briefs.html.

     The posting is part of the law professors blog network and looks at a recent law review article that argues that rhetoric, both by advocates and by judges, disserves the judicial enterprise. Peck takes issue with that, though he argues that care must be taken. Still, some of the most influential and most quoted cases in Supreme Court history are both memorable and important because of the use of rhetoric. Some of those turns of phrases, he says, are only appropriate for a judge, because an advocate is in the position of trying to win over a court that may not appreciate the allusion or humor used. Peck, though, finds solace in making use what may otherwise be heated rhetoric when it comes in a quotation from aa cited case.

     As his first contribution as a contributing editor to the Appellate Advocacy Blog, CCL's Robert S. Peck wrote about whether oral advocacy advice written 80 years ago by Justice Robert H. Jackson still holds up. The Appellate Advocacy Blog is a part of the Law Professor Blog Network.

     Before he served as a justice on the Supreme Court, Jackson had been both Attorney General and Solicitor General. It was in the latter role that Justice Louis Brandeis complemented Jackson's work with a statement that Jackson should serve as Solicitor General for life. Still, Jackson displayed all the same self-doubts that other advocates do, saying he always composed three arguments, the one he planned, the one that he actually gave in the face of tough questioning, and the one he thought afterwards that he should have given.

     Jackson's article, written for the ABA Journal in 1951, contained practical advice on oral argument. Some of it plainly reflects an earlier era that no longer exists, where judges were apparently less prepared than today. Other advice remains consistent with contemporary ideas about oral advocacy. 

     The blog posting can be found at Appellate Advocacy Blog.

     Louisiana Governor John Bel Edwards vetoes S.B. 43, a bill intended to restrict attorney advertising and based on the same legislation that CCL successfully argued was unconstitutional in West Virginia. CCL's Robert S. Peck testified against the Louisiana bill in the Senate and House Commerce Committees, explaining why it was unconstitutional. The legislation, nonetheless, was approved by both Houses. 

     However, the governor vetoed the bill, ending its journey into law. In May, a federal district court declared the West Virginia version of the bill unconstitutional in a case brought by CCL with the Segal Law Firm. The State of West Virginia has, however, appealed the decision, and a briefing schedule for the appeal has now been set.

     CCL President Robert S. Peck made a co-presentation with attorney Deepak Gupta on the results and meaning of the U.S. Supreme Court's latest personal jurisdiction decision, Ford Motor Co. v. Montana Eighth Judicial Dist. Court. The case, both lawyers agreed, was a marked and welcome departure from the past decade of decisions that had substantially narrowed state-court authority over out-of-state defendants.

     Gupta had argued the case before the U.S. Supreme Court and described his strategy of demonstrating the importance of allowing state courts to hear these cases in which the defendant did regular business for the product that had injured the plaintiffs in the state where they resided. He had also recruited amicus support from state attorneys general and small businesses to demonstrate the breadth of interests affected. Peck had written an amicus brief on behalf of the American Association for Justice. In it, he demonstrated that Ford had maintained a relationship both with the owner of used cars, regardless of the state where the vehicle was first purchased and with the vehicle itself through recalls and other notices. He noted that Ford extensively advertised to car owners to use original manufacturer parts, whether the vehicle was self-serviced, serviced at a dealership, or at an independent car shop, under the slogan, "Keep Your Ford a Ford." The unanimous opinion from the Court, written by Justice Kagan, picked that up from Peck's brief, reciting the slogan in the decision's second paragraph.