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August 15, 2023
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“Headlines warning about the crisis of declining or failing democracy are a constant drumbeat in the news media. This is not all contrived. Democracy has been in decline around the world for at least the past decade. Through my work in the international rule of law arena for the past two decades, I have experienced firsthand the recent backlash against democracies and the phenomenon of incremental democratic erosion resulting in, and reinforced by, judicial backsliding.
It is challenging, however, to cut through the histrionics of the news reports and make sense of what is happening. Plentiful literature diagnoses what ails democracy. A common theme is the decline of the rule of law, an issue particularly close to my heart. In this piece, I discuss why rule of law is fundamental to democracy and why rule of law is under threat across the world, particularly through executive encroachment and internet criminalization and censorship. While I do not have a crystal ball to predict where we are going, I offer a lens to understand these issues.”
* Senior Circuit Judge, United States Court of Appeals for the Ninth Circuit.
“In federal courts, making the factual record and factfinding is done at the trial court or at an administrative agency. The relevant factual material is submitted to an appellate court in a neatly bound appendix. It would seem that nothing is better established than the rule that appellate courts do not receive new factual material on appeal or engage in factfinding. Rule 201 of the Federal Rules of Evidence allows for a limited exception related to judicial notice of adjudicative facts. Rule 201 permits notice where a fact is generally known and its ‘accuracy cannot reasonably be questioned.’
This picture is not entirely accurate. The reality is that appellate courts, including the Supreme Court, regularly receive new factual material on appeal and engage in a form of factfinding, even where the facts are not clearly undisputed, to determine ‘legislative facts.’ Legislative facts are ‘those which have relevance to legal reasoning and the lawmaking process . . . in the formulation of a legal principle or ruling by a judge or court.’ The Notes accompanying Rule 201 recognize that ‘no rule deals with judicial notice of “legislative” facts,’ but goes on to recognize that various established authorities acknowledge that the courts appropriately rely on ‘legislative facts,’ and that ‘this . . . view [that reliance is appropriate] . . . should govern judicial access to legislative facts.’ The Notes also recognize that the traditional fact-finding processes only apply to what Rule 201 labels ‘adjudicative facts,’ those facts ‘concerning the immediate parties’ in the case, and not to legislative facts.”
* Circuit Judge, United States Court of Appeals for the Federal Circuit.
“Article III courts are white-collar courts. They are, scholars have said, ‘special.’ They sit atop the judicial hierarchy, and they are the courts of the one percent. We inculcate that sense of specialness in a variety of ways: federal courts are courts of limited jurisdiction; they are the subject of a (perhaps overrated) class in law school; we privilege clerkships with federal judges more than with state-court judges; and we focus more scholarly attention on federal courts than state courts. They are, in short, the courts of the elite— jurisdictionally, doctrinally, and socially. Perhaps the singular importance of federal courts was inevitable, but this Article explores that attitude’s darker side. White-collar courts privilege certain kinds of disputes and certain classes of litigants; federal courts prefer white-collar work to blue-collar work. Such privilege, this Article argues, creates expressive and attitudinal harms: it imposes a value judgment about the work of federal courts that denigrates some, while exalting others.
Over the last century, what this Article calls ‘macro-judging’—a term that, consistent with macroeconomics, describes institution-level judicial decisionmaking—has created opportunities for federal courts to express their preference for white-collar work in a variety of ways. Ostensibly to tackle two competing caseload crises—an increase in small, low-value litigation and an increase in the numbers and complexity of ‘big’ cases—Article III judges have lobbied for, and created, procedural systems that have shifted work to other decisionmakers, increased their agenda-setting power, and entrenched their autonomy. Macro-judging has resulted in necessary and even benign or beneficial judicial programs, policies, and procedures. But these procedural and administrative shifts have also created pathways for preferential treatment of certain classes of cases and litigants, have endangered access to justice in federal courts, and may have created an attitudinal foundation for maximalist judicial rulings.”
* Associate Professor of Law, University of Florida Levin College of Law.
“The federal court system and the Federal Rules of Evidence are designed around the English language. As the United States becomes increasingly diverse and multicultural, however, a growing number of Americans speak a primary language other than English. The federal courts and the Federal Rules of Evidence must accommodate parties, witnesses, and evidence presented in a foreign language, notwithstanding their English-only orientation. Federal Rule of Evidence 1002, known more colloquially as the Best Evidence Rule, assumes that evidence will come in only one, English flavor, however. The Best Evidence Rule is powerful and straightforward, ensuring that jurors have access to original writings and recordings in order to evaluate their meaning accurately. When applied to English-language writings and recordings to require that juries examine originals, the Best Evidence Rule improves accuracy. But when rigidly applied by federal courts to require English-speaking jurors to evaluate foreign-language recordings for themselves, the rule and its rationale break down. If the plain language of the Best Evidence Rule mandates such a result, as one federal circuit court recently held, the Federal Rules of Evidence should be amended to remove foreign-language recordings from its orbit, lest accuracy suffer and the import of foreign-language recordings get lost in translation. This Article offers concrete amendment alternatives that would exempt foreign-language writings and recordings from the Best Evidence Rule and pave the way for the efficient and meaningful consideration of foreign-language content by American juries. But this Article also charts a novel and detailed course through the existing Federal Rules of Evidence allowing for the admissibility of English transcripts of foreign-language recordings outside the Best Evidence Rule. Should federal courts unite around this common-sense interpretation of the Best Evidence Rule that allows for the fair and effective presentation of ubiquitous foreign-language evidence, costly amendments to the Federal Rules of Evidence can be avoided. If the federal courts do not interpret the existing Federal Rules of Evidence in a manner that offers a workable solution for burgeoning foreign-language evidence in the federal court system, however, the Best Evidence Rule should be amended to reflect our multicultural reality and to release foreign-language writings and recordings from its rigid constraints.”
* George Lynn Cross Research Professor, Floyd & Martha Norris Chair in Law, University of Oklahoma College of Law; Academic Consultant to the Judicial Conference Advisory Committee on Evidence Rules.
“While implicit gender bias may attach multiple aspects of one's gender, this Article examines gender bias solely through the lens of communication and language use, which the hope that this allows for a more focused understanding of the lack of gender parity of law. Part I of this Article reviews the studies and statistical data indicating that women in the legal profession lag behind their male counterparts in traditional indicators of success. Part II discusses the role that implicit bias may play in preventing women from achieving parity in legal employment. Part III addresses the sociolinguistic studies documenting gendered differences in communications styles as well as the feminist theories that suggest why women experience barriers to success based upon these differences. Part IV examines the social science literature documenting how women are penalized for their communication style in the workplace and courtroom. Part V charts the "linguistic minefield"—how women conform their language practices to the masculine norm and suffer the penalizing consequences of such accommodation. Finally, Part VI discusses the individual and organizational repercussions of communication bias. It also suggests how interdisciplinary partnerships could go beyond traditional implicit bias training to help law schools and legal employers craft a targeted response to address gendered communication bias in the profession.”
* Emily A. Kline is an Associate Clinical Professor of Law at Rutgers Law School.
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