2011-2012 Federal Rules of Civil Procedure [Law School Edition] (The Essential Law School Series)

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For example, I have been a participant in the Law Society of Alberta Justicia Project, including a recent education session with Caren Ulrich Stacy, the Founder of Legal Talent Lab and On Ramp Fellowship, which highlighted some of the retention and re-engagement challenges that persist in preventing gender diversity in the legal profession. I have participated in Federation of Law Societies conferences and workshops, gaining insight into the difficulties faced by those who cannot afford or navigate the justice system.

As part of that work, I have had the opportunity to meet with staff and volunteers of community organizations here and in other parts of the country that assist vulnerable people address legal problems, and to participate in a United Way poverty simulation that reinforced my perception about the degree to which poverty, at a very practical level, prevents access to legal and other services.

I have also had the opportunity to learn about the perspectives of Canada's Indigenous peoples. We had the opportunity to listen to a number of Indigenous lawyers talk about their perspectives; Judge Marion Buller also gave an informative presentation about First Nations Courts, stressing the need for improvements to Indigenous sentencing considerations, and the possibility of extending principles from R. Gladue, [] 1 SCR , and R. Ipeelee, SCC 13, to Indigenous child welfare cases.

Finally, I have had the honor to participate in a Canadian Citizenship Ceremony. Talking to new Canadians from around the world about their backgrounds and hopes for the future in Canada was illuminating and inspiring. In a keynote address to Osgoode Hall Law School in , Ontario Court of Appeal Justice Rosalie Silberman Abella as she then was opened her remarks about the judicial role in a democratic society with a brief, but compelling, description of what a democracy is.

She observed that " What democratic societies promote — and repressive ones do not — are the rights of its citizens and their participation in decision-making about the rules they will be governed by. Democracy promotes choice, voice and access to rights. Totalitarianism promotes none of those. I share Justice Abella's view that this is a good place to start, and I can say it no better than she has done. In our constitutional democracy, it is the Constitution Constitution Act, that defines the roles and powers of each of the three branches of government — legislative, executive and judicial — and protects the rights of our citizens.

It anchors the key values upon which our collective sense of freedom and safety relies; democratic governance, respect for fundamental rights and the rule of law, and accommodation of difference. Within this simple framework, it is at once easy to see how the roles of the legislative and executive branches of government and of an independent judiciary complement one another to strengthen the values of a free and democratic society, and also hard to comprehend how so many countries struggle to achieve the peace we enjoy.

Certainly, when we pause to reflect on the abuses of power, intolerance, and erosion of respect for the rule of law we see daily in the international news, it is difficult to understate the important role judges serve in our country.

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Judges are responsible for resolving the legal disputes that citizens and the state ask them to decide. They are called upon to apply the law, impartially and on the basis of the facts as they find them. Some cases heard by the trial court involve disputes between private parties about the rights and obligations they owe to one another.

Others involve conflicts with the state. Some cases require the court to apply, or advance as may be required, the common law. Others require the interpretation of statutes which reflect the will of the legislature.

Barbara L. Grossman

In any case where the parties themselves are unable to resolve the dispute, the courts provide a peaceful means for doing so. In deciding the questions brought before them, judges play a critical role in supporting the rule of law — the principle that no person or institution is above that law, but rather must be guided by it — and they safeguard the essential elements of democratic governance. Judges are called upon to interpret the Constitution in defining the division of powers between the federal and provincial governments.

They play a supervisory role over administrative tribunals created by legislators, and for those who believe a government, or those who act on its behalf, have violated their rights under the Canadian Charter of Rights and Freedoms Part I of the Constitution Act, , the court will rule upon the validity of the law or government action. If an infringement of rights has occurred, judges decide what remedy is appropriate.

In adjudicating these claims and intervening when government conduct is not lawful or reasonable and demonstrably justified in a free and democratic society, or where an accused person's rights have been violated during an investigation such that use of the evidence would bring the administration of justice into disrepute, judges play an important role in defining the scope of and protecting the Constitutional rights of Canadians. Judges give effect to our laws and give meaning to our rights and duties as Canadians. Courts offer a venue for the peaceful resolution of disputes, and for the reasoned and dispassionate discussion of our most pressing social issues.

The audience for any particular decision depends, to some degree, upon the nature of the issues in dispute and the significance of those issues for the parties involved and for others, including the public and government.

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In all cases, the parties themselves can and should expect to understand the reasons for the decision made, particularly the party whose arguments have been rejected. In many cases at the trial court level, the audience for the decision may not extend beyond the parties, or perhaps the appellate court, given the trial judge's role to hear evidence, make findings of fact and then apply settled law to the particular facts as found.

In other cases, court rulings during a hearing — as well as the ultimate decision — may attract broader interest and scrutiny. Beyond an audience of other judges and lawyers, decisions in the civil litigation context regarding — for example, the interpretation of a contract — are important to the parties and may have implications for others in the same industry. A decision interpreting a statutory provision may impact other litigants and attract the attention of the government.

Some cases engage issues of such economic, social or political consequence as to attract a wider audience within the community, including business leaders, advocacy groups and the media as well. The same is true of administrative law decisions. At the narrow end of the spectrum are decisions that do not have significant implications beyond the unique factual circumstances of the case. At the widest end of the spectrum are decisions like those rendered by the superior courts in British Columbia, Ontario and Nova Scotia addressing the question of accreditation of a proposed law school at Trinity Western University and the student covenant forbidding sexual relations outside of a heterosexual marriage.

Those decisions are of importance to many across the country —including, in particular, members of the LGBTQ community and those with different religious beliefs. Lawyers and judges, prospective students, legal regulators, educators, academics, the media, and the public in general, also follow cases such as these with great interest.

Criminal cases are similarly multifaceted and represent one of the most closely watched areas of the courts' work. The reasons for decisions in criminal cases must be understood by the accused and those affected by the crime, but are often of interest to the media and the public at large. In this area of law, perhaps more than in others, court proceedings and decisions are the subject of media reports and social media commentary, with people sharing their thoughts and perspectives about the court process and outcomes. With social media revolutionizing the way people communicate and understand the world around them comes an increasingly wide audience of people from all walks of life attempting to comprehend what the courts are doing in some cases, and a new dimension to a judge's responsibility to conduct him or herself in a way that maintains public confidence in the justice system.

Whatever the case, I believe it is the judge's responsibility to listen respectfully and with an open mind, to ask questions as required to get to the heart of the issues and to understand the arguments, and to render thoughtful and informed decisions with clear and cogent reasons that the parties and others with an interest can understand.

Please describe the personal qualities, professional skills and abilities, and life experience that you believe will equip you for the role of a judge. My decision to apply for a judicial appointment is an extension of my desire to continue to learn about and contribute to the law and the pursuit of justice in Canada. I believe I have earned respect from my clients and from my colleagues for my work ethic, my analytical abilities and skill as an advocate, and for my professionalism and ethics. Those who know me well would describe me as inquisitive and discerning, empathetic and reflective.

I am patient and courteous, although I can be firm and direct when required. I am an astute listener. I am open minded and take care to avoid hasty judgment, but have no difficulty making, explaining and standing by my decisions. I am not afraid of addressing issues I don't immediately understand or of acknowledging what I don't know. I am, instead, curious and comfortable in my ability to learn. I take my work, but not myself, seriously. I care deeply about my family and about my friends. I also care about the justice system and the people it serves, which I believe I have demonstrated with my work on behalf of the profession and in the public interest.

I understand that some degree of isolation is inherent in the role of a judge. Apart from the workload that requires long hours which I am accustomed to , judges have a responsibility to avoid activity, association or public comment that may reflect adversely on their impartiality or interfere with the performance of judicial duties Canadian Judicial Council, "Ethical Principles for Judges". This casebook on the law of sexual orientation and gender identity weaves interdisciplinary perspectives into the up-to-date coverage of a rapidly changing legal landscape.

It provides comprehensive coverage of the range of legal issues concerning LGBT persons, along with scholarly commentary on these issues. It also covers issues of sexuality and gender more broadly. It addresses in depth many significant recent developments, including the Supreme Court's landmark decisions on marriage equality in Obergefell and Windsor, and the growing set of religious liberty claims asserted by opponents of LGBT equality measures.

Gender identity issues are covered throughout the book. Civil Justice System 20 Joseph W. Doherty, Robert T. Press Nicholas M. Class actions are among the most public forms of civil litigation, especially because a judge must review and approve a proposed class settlement following public notice and a public hearing.

Ironically, however, a veil of secrecy can fall over class action litigation the moment the judge signs off on the agreement and ultimately, little information is available about how many class members actually received compensation and to what degree. This lack of transparency is especially troubling because of evidence that aggregate payments in class settlements sometimes constitute a mere fraction of the compensation fund extolled by the parties at the time of settlement review.

This paper examines the extent to which claiming data are available and recommends ways to increase transparency in this area. We reviewed the official court files in a sample of 31 class action settlements and we also made direct inquiries to the judges, lawyers, and settlement administrators in another set of 57 cases. Searching through the case files and communicating with the participants, we were able to gain access to data in fewer than one of five closed cases. Despite the significant time and effort we put into the task, the final outcomes of four of five class action cases were beyond our discovery.

It is not that the data are non-existent - claims administrators or parties certainly have them - it is, rather, that they are secreted away.


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The outcomes of publicly approved settlements lie locked in private files. We argue that this is a problem for three reasons: because the case outcomes might not be all that they purport to be; because the lessons that they could teach - for example, about which approaches work best - are lost to secrecy; and because the public record is unnecessarily incomplete and public access unnecessarily thwarted. We end the paper by proposing a set of solutions, including requiring parties to report back to the court on the final claiming data, publicizing this data, and creating a central repository for it.

Rubenstein, Why The Percentage Method? But should class members who were not an active part of that proceeding be able to relitigate adequacy in a collateral forum at a later date so as to evade the binding effect of the class judgment? Despite the richness of this debate, myriad specific questions about the availability, substance, and procedural details of the relitigation opportunity remain unexamined.


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Using two recent, seemingly unconnected Supreme Court cases—one from each field—as case studies, Professor Rubenstein explains how these cases in fact raise remarkably similar questions. Specifically, the comparison reveals that habeas provides a relatively clear, rule-based system that specifies when—and according to what procedural rules—relitigation is available. Rubenstein, Percentage of What? At the conclusion of every class action lawsuit, a judge must hold a fairness hearing to assess the reasonableness of the outcome.

The fairness hearing contains the promise of providing real monitoring of class counsel. In practice, it has not fulfilled this promise and scholars have largely, therefore, forsaken it. In this Article, William Rubenstein provides a sustained investigation of the fairness hearing, arguing that since it will inevitably take place, we ought to perfect not abandon it. Examining this new set of disparate proposals enables an assessment of the underlying question of institutional design: namely, whether adversarial or regulatory, public or private, approaches are likely to be most efficacious at identifying and curtailing problematic settlements and hence controlling class counsel.

For review of the settlement process, investigatory oversight is the needed procedure and an administrative inquisitor the ideal agent. The proposed settlement of a class action should trigger a two-part process involving both a judicial assessment of the value of the claims and a regulatory assessment of the process of settlement. Such an enriched proceeding holds the promise of providing meaningful constraints on class counsel.

Rubenstein, Why Enable Litigation? The legal claims that gave rise to Shutts were meritorious, yet of relatively modest value. Individuals are unlikely to litigate such negative value claims because the costs of doing so outweigh the benefits they will receive; defendants are well-situated to escape liability. Conventionally, scholars describe this situation as posing a collective action problem and demonstrate how the class action mechanism works to solve that problem. In this Article, I discuss the problem of negative value claims in a related yet distinct manner.

The fact that parties will not pursue these claims is, I argue, an example of the underproduction of a so-called public good. That good is a lawsuit. Litigation can be conceptualized as a public good, with its pursuit producing positive externalities. The Article enumerates these collateral social benefits, grouping them as: 1 decree effects; 2 settlement effects; 3 threat effects; and 4 institutional effects.

The addition of this analysis to the scholarly literature serves several functions. Among these is that it illuminates how little collective action really takes places in small claims cases; how relatively unimportant the compensatory aspects of the case are compared to its other social functions; how the concept of deterrence does not capture these non-compensatory benefits as well as the concept of externalities does; and how small claims class actions are more like other types of class cases than generally presumed.

Rubenstein, Play It Straight , N. Times , Oct. Type: News. Comments on the emergence of same sex marriage during the political debates of the presidential candidates in the U. Remark of the Democratic nominees concerning Mary Cheney, the lesbian daughter of Vice President Dick Cheney; Portrayal of hypocrisy by both parties; Contrast between the Cheney's support for his daughter and the president's policies. Rubenstein, Hiding Behind the Constitution , N. Times , Mar. Sub-Categories: Discrimination.

Message by Republicans that gay marriage is all about "judicial activism"; Appeasement of the conservative base of the Republicans by opposing gay marriage; Contention by the Democrats that gay marriage is all about state's rights; Ability of Democrats to placate their liberal cause by not opposing gay marriage. Although the phrase private attorney general is commonly employed in American law, its meaning remains elusive.

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The concept generally serves as a placeholder for any person who mixes public and private features in the adjudicative arena. Yet there are so many players who mix public and private functions in so many different ways that the idea holds the place for a motley cast of disparate characters. My goal in this Article is to map these mixes - to distill from the singular private attorney general concept a range of distinct private attorneys general - and then to show why this new taxonomy is a helpful heuristic device.

Specifically, I argue that the new taxonomy illuminates a weakness in the governing model of the class case. Scholars loosely associated with the law and economics movement have helpfully described class action lawsuits as presenting a classic agency problem: class action attorneys agents pursue the interests of their class member clients principals with little oversight or control. Consequently, class action scholarship has focused on identifying ways to better align the interests of the agents with those of their principals.

This obsession with agent incentives assumed, without significant investigation, that there existed a stable group of principals with easily-identifiable interests. My typology demonstrates that different types of private attorneys general serve different types of principals, each of which combine public and private interests in different ways.

If the goal of class action law is to align the attorneys' interests with those of their clients, it is necessary to identify clearly the precise nature of these underlying principals. That is the contribution of this piece. Rubenstein, The Real Story of U. Since , the federal government has collected data on hate crimes reported throughout the United States. To date, the conventional account of that data has simply been to report that racial hate crimes are the most frequently reported type, followed by religious hate crimes, and sexual orientation hate crimes.

While this conventional story is not technically wrong, I argue in this Article that it is not the real story the data tell. Undertaking the first comprehensive empirical analysis of this data, this Article develops a new account of hate crimes in the United States. First, the Article pierces the neutral categories race, religion, sexual orientation to demonstrate that three sub-groups - blacks, Jewish people, and gay people - report, by far, the most hate crimes.

Second, I adjust the raw data to account for the differing population sizes of targeted groups: per capita, gay people report the greatest number of hate crimes, followed by Jewish people and blacks, these three groups reporting hate crimes at greater per capita rates then all other groups. Third, gay people are especially like to report personal - as opposed to property-based - hate crimes. A final section of the Article presents the first scholarly analysis of the staggering growth of anti-Islamic and anti-Arab hate crimes after September 11, The methodology of this Article enables a per capita perspective on this increase, showing that Muslims and Arabs reported hate crimes in at rates even greater than those at which gay people, Jewish people, and blacks have reported hate crimes over the past half-decade.

As Congress intended hate crimes data to assist in designing public policy initiatives, the Article concludes by calling on Congress to respond to what the data actually demonstrate. Times , Nov. Comments on the legalization of gay marriage in Massachusetts. Rights and benefits afforded to gay couples in different states; Relocation of majority of people who identified themselves as "living with an unmarried partner" to states that grant some legal recognition to gay unions.

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The Article fills a void in the procedural literature by providing the first sustained treatment of the complex role that equality plays in procedural thought. The Article's central message is that there is not one "procedural equality" but rather a host of "procedural equalities. The Article creates a new typology of procedural equalities. The Article's second primary contribution is that it demonstrates how our procedural systems contain an intricate web of architectural decisions that promote procedural equalities.

The Article discusses numerous procedural rules and approaches that contribute to the forms of equality that are identified. Finally, by carefully delineating the meaning of equality in various procedural domains, the Article provides an explanation for the Equal Protection Clause's impotence in the field of procedure - namely, that constitutional equality and these three procedural equalities are not the same thing. Although my conclusion is that constitutional adjudication is generally not a successful, nor even germane, method for achieving procedural equalities, the Article nonetheless contains a normative agenda.

It concludes by providing policy suggestions to two sets of institutional actors - crafters of alternative dispute resolution systems and legislators considering procedural rules. This Article defines a new way of thinking about adjudication. American procedural theory encompasses three familiar models of adjudication: the traditional adversary system model; a model of public law litigation that describes large civil rights cases; and a model of managerial judging that attempts to account for the increasing judicial emphasis on settlement, as opposed to adjudication.

None of these models, however, can explain much of contemporary class action litigation. A new model of civil litigation has emerged: a transactional model. The large, sprawling class action lawsuits that occupy the current procedural domain have more in common with business deals than they do with traditional adversarial litigation, legislative activity, or executive management.


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The salient attributes of contemporary class actions are most familiar in transactional terms: 1 Defendants purchase a commodity - finality. They buy from the plaintiffs' representative the plaintiffs' rights to sue. They negotiate and structure large financial arrangements. Traditional litigation work - client meetings, legal research, discovery, motion practice, brief drafting, oral argument, trial - is of secondary importance. Pleadings often do not initiate adjudicatory activity, but rather succeed the finalization of the transaction, and rarely do they frame the nature of the dispute as much as they reflect the nature of the deal.

Huge transactions take placed based on discovery from other cases, or no discovery at all. Trial is rarely contemplated. The Article then describes the new transactional model, making the case for conceptualizing large, private law class action lawsuits as commercial transactions. The Article demonstrates the descriptive and explanatory value of such a model.