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Abstract:
Law schools no longer teach logic. In the authors' view this is tragic, given that the fundamental principles of logic continue to undergird the law and guide the thinking of judges. In an effort to reverse the trend, this essay explains the core principles of logic and how they apply in the law school classroom. The manuscript begins by examining the basics of the deductive syllogisms and then turns to inductive generalizations and the uses and abuses of analogies. The authors claim that students who master the basics of logic laid out in this article will be better lawyers and will feel more comfortable when they find themselves presenting arguments to judges and juries.

Logic, legal education, syllogism, deductive reasoning, inductive reasoning, reasoning, legal analysis

Abstract:
The authors - a federal appellate judge and his law clerks - bring unique perspectives to bear on the topic of opinion writing and opinion readers. The contents of this Article were inspired in large part by the work done by the authors in editing and preparing the second edition of Judge Aldisert's classic book Opinion Writing, which for many years was distributed to all federal trial and appellate judges, and to all state appellate judges, when they took the bench. A broader audience of professional opinion writers and students of the judicial process now has access to Opinion Writing, 2nd Edition, an updated, comprehensive guide intended to be of wide practical use to members of the judiciary, judicial staff attorneys and law clerks, state and federal administrative judges, hearing officers, commissioners and private arbitrators, law librarians, scholars and students. This Article draws from and complements topics addressed in Opinion Writing, 2nd Edition, while specifically highlighting the relationship between opinion writing and opinion readers.

In Part I, we survey some of the considerations facing opinion writers as they decide whether to write an opinion at all, examine the decision-making process engaged in by courts prior to writing an opinion, and summarize the various types of written "opinions" that may be produced, such as per curiams, judgment orders, precedential and non-precedential opinions. In Part II, we identify primary and secondary "readership markets" for judicial opinions and discuss how the purpose of writing opinions is affected by the intended audience. In Part III, we dissect the ideal structure of an opinion, offer basic mechanics of draftsmanship and address some of the criticisms of judicial opinions lodged by readers. In Part IV, we briefly touch on opinion writing style and editing. In conclusion, we reaffirm the need for wider understanding of the judicial process and for increased clarity of communication between opinion writers and readers. To this end, we hope this Article will serve as a useful resource for all opinion readers and writers, including scholars, practitioners and judges, students and aspiring law clerks.

opinion writing, judicial process, legal writing, appellate, judiciary, clerking

Abstract:
For many, the judicial clerkship application process is, to quote Sir Winston Churchill, "a riddle wrapped in a mystery inside an enigma." It is a frenzied Pamplona-like atmosphere that begins after Labor Day and continues unabated for several weeks. The initial week is the make or break point in the application review process because it is then that the judge starts to read each application and makes a yes or no evaluation. If his or her vote is a no, then no further action is taken. If it is a yes, the application passes to the law clerks, who then begin their evaluation. Our experience reviewing these applications has led us to the unanimous conclusion that many applicants select their list of judges and put together their packets with little or no thought of strategy as to how to get their applications past this initial phase and into the yes pile. We would like to guide the judicial clerkship applicant through the application process by discussing how our chambers conducts the interview and selection process. Specifically, we hope to dispel rumors of what goes on behind the curtain, and ultimately shed some light on how a clerkship applicant could improve his or her chances of receiving an offer.

The authors are fully aware that there is a vast amount of literature discussing the clerkship application process. Most of the literature is couched in somber academic tomes, one of which was serious enough to require 334 footnotes! Our treatment of the subject is far less scholarly. We will not be discussing the role of game theory or the use of the "medical-matching model" in law clerk selection. Our purpose is simply to provide an insider's perspective into the clerkship application process and, in doing so, defend the following theses:

-- Unless you are the Editor-in-Chief of your school's main law review or one of the top five or ten students in your class, you need to set yourself apart from the competition.

-- Your road to success is through the face-to-face interview with the Judge. In making this point, we depart from the truism in the decision-making process that writing a good brief is more important than oral argument. In your written applications you may have sterling academic records, stunning extracurricular activities, and superb references, but whether you get the job offer depends on how you perform at the personal interview.

PDF scan posted with permission of the Penn State Law Review.

clerking, clerkships, judiciary, appellate courts, clerkship application process, writing sample, clerkship interview, judges, judging, rat race

Abstract:
Roger J. Traynor admonished us not to "be misled by the half-truth that policy is a matter for [only] the legislators to decide." The courts are continually called upon to weigh considerations of public policy when adding to the content of the common law, when filling in statutory gaps left by an inattentive, divided or politically sensitive legislature and when applying constitutional precepts to changing and novel circumstances. In all these aspects of the judicial process, considerations of public policy may be compelling or even decisive. Policy considerations underpin even the threshold doctrines of justiciability. Determining appropriate public policy plays a prominent role in contemporary adjudication, with a seemingly inexhaustible inventory of social interests pressing upon judges and jurists for attention.

However, recent criticism of judges - whether as lawmakers or as interpreters of constitutional or statutory text - has been particularly strong where they base decisions on considerations of public policy. Such decisions generate controversy on grounds both political and institutional. Public policy issues more readily inspire the familiar labels of "liberal," "conservative," "strict constructionists" or "a Bork-type." They provoke criticism from social, economic and political perspectives. Some critics argue from an institutional perspective, contending that articulating policies for the public interest is the task of state and national legislatures rather than federal or state judiciaries. Depending upon the viewpoint of the critic, judges who seek to advance the common good expressly through policy making are pilloried as either "activists" or "traditionalists." This controversial aspect of judicial responsibilities demonstrates the interplay in the trichotomy of legal philosophy, jurisprudence and jurisprudential temperament.

Most criticism arises from the perception that "policy considerations" lend themselves to greater judicial subjectivity. Certainly, the tendency of judges to find society's values in their own is a constant and real danger. Much adjudication in the federal courts, especially in constitutional interpretations based on concepts of public policy, moral standards and public welfare, is little more than the conscious or unconscious imposition of certain judges' personal values. Many of us who purport to be objective in identifying community values, and who are indeed sincere about it, are actually intent on attaining immediate social ends that we personally see as moral imperatives.

Although much of the controversy concerning judicial implementation of public policy, including criticism of Supreme Court nominee Sonia Sotomayor's comment that the Court of Appeal is where policy is made, is of recent vintage, the practice itself is longstanding and well established in common-law adjudication. This Essay provides an overview of judicial declaration of public policy, and explores some of the concerns associated with the same. It asks and addresses questions such as: How is the judge to ascertain the public interest and the policies that will advance it? How should a judge reconcile what Lon Fuller called the "inner voice of conscience" with prevailing community standards? How may a judge screen out personal bias, passion and prejudice, and distinguish between his or her own taste and the general notions of moral obligation? Where is the threshold at which judges are willing to act in disregard or contravention of prevailing social norms, the extent to which they are willing to confront the "antimajoritarian difficulty"? And how does a judge reach a reasoned accommodation of relevant interests?

judiciary, judges, judging, judicial process, judicial activism, writing, opinion writing, legal writing, policy, public policy, policy considerations, courts, federal courts, appellate courts

Abstract:
Sample list of duties of law clerks in Judge Aldisert's chambers, provided as second example of "Sample Instructions to Law Clerks" from various judges.

PDF scan posted with permission of the Vanderbilt Law Review.

clerking, judges, judging, appellate, instructions to law clerks, duties of law clerks, Aldisert

Abstract:
The doctrine of precedent is everyone's dragon. If facts in the putative precedent are identical with or reasonably similar to those in the compared case, the precedent is recognized as legitimate, and it is applied. In such cases, all of us -- student and professor, lawyer and judge, commentator and philosopher -- consider it merely, as the Italians say, "un dragonetto" (a small dragon). But if the material facts in the compared case do not run on all fours with the putative precedent, the doctrine becomes "un dragone," or, to give equal time, "una dragonessa" (a full grown, ferocious dragon). Wrestling with such a dragon can be the most difficult and controversial job in the judging business.

I realize that literature on how to deal with this dragon abounds. Undeterred, I make bold to mount my charger, draw my lance, and gallop into the lists to volunteer some advice on how to tweak the dragon's tail. Perhaps the dragon will prove too elusive, or I too bold or too meek, but ever persistent I will press on, hoping to tame this dragon. I bring with me experience, not only as a judge, to be sure, but also as one who has explored and meandered in the judicial process thicket, seeking trails to understand what it is all about.

First I will discuss some definitions of precedent and the overarching doctrine of stare decisis. I the will explore what I call the four different models of precedent. From this I will move to a consideration of precedent as a method of classification containing varying degrees of abstraction. This will lead to a study of inductive reasoning, including both generalization and analogy, taking freely from my book Logic For Lawyers: A Guide to Clear Legal Thinking. I wrap it up with some views of precedential vitality, and close with the distinction between precedent and persuasive authority.

PDF scan posted with permission of the Pepperdine Law Review.

precedent, judicial process, judiciary, judges, judging, stare decisis, authority, persuasive authority, logic, inductive reasoning, analogical reasoning, inductive reasoning, doctrine, legal logic, logic for lawyers, Aldisert

Abstract:
This article suggests that in the past half-century basic changes have occurred in the sources of law utilized in the judicial process. It describes the jurisprudential environment within which Benjamin N. Cardozo's classic 1921 lecture "The Nature of the Judicial Process" was conceived, and briefly analyzes the common law model that prevailed in the United States during the 1920s. It then identifies, rather than evaluates, what I perceive to be major changes in that environment that characterize the present. The article argues that the common law is no longer the major source of law utilized in American judicial process, and that it is therefore important, if not essential, to recognize a distinction between the common law as a source of the law and the common law as a decisional process. Although the source of the law has undergone significant change, our decision-making tradition endures with undiminished vigor. Nevertheless, a confluence has now occurred between Anglo-American common law and the Continental-Roman Civil Law. The article emphasizes the importance of recognizing the meld of these two diverse jurisprudential schemes. The practitioner and the philosopher must not only recognize what has taken place, but must make the necessary adjustments when participating in or commenting on the judicial process.

PDF scan posted with permission of the University of Cincinnati Law Review.

judicial process, Cardozo, common law, legal decision making, judges, judiciary, judging, Aldisert, jurisprudence

Abstract:
Forensic science in the courtrooms and public safety organizations is generally considered a modern phenomenon, with the development of the great profession of forensic pathology and the availability of university-trained criminalists, crime scene specialists, toxicologists and laboratory PhDs. And, to be sure, forensic scientists are now the most popular heroes of current television, if you look at the skyrocketing ratings of shows like Law and Order and the CSI franchise.

But the first popular forensic scientist appeared over 100 years ago when Sherlock Holmes arrived on the scene in 1901. In the first novel, A Study in Scarlet, when Dr. Watson was looking for a man to share lodgings, a friend referred him to Holmes, who was then working in the chemical laboratory of a hospital. The friend said, “I believe he is well up in anatomy, and he is a first class chemist; but, as far as I know, he has never taken any systematic medical classes.” Watson later tells us that “[s]ometimes, [Holmes] spent his day at the chemical laboratory, sometimes in the dissecting rooms . . . and [he] has a good practical knowledge of British law.” That’s a pretty good resumé for any forensic specialist.

But essentially he has been referred to as “Holmes the Deductive Machine.” And the success of all the stories came from “the aptitude of Holmes’ deductions drawn from clues which, with scrupulous fairness, are always laid before the reader.” With Holmes as a backdrop I have several theses I intend to defend in these pages:

• A professional in forensic science can use logic and still be wrong.
• But a professional who does not use logic can never be right.
• Most professionals in forensic sciences use deductive and inductive reasoning every day without realizing they are applying the canons of logic.

Some who master the technique of reasoning are not always certain what it is. Certainly, they learn how to do it, some of it. They pick up idiosyncratic signals somewhere and even a playbook. They learn how to go through the process, and occasionally, they learn why they do it. Others do not know exactly what is being done. They learn the exercise. They go through the motions. But most are a little shy on theory.

This chapter is a modest attempt to fill that void. It is directed to “the what” of formal reasoning, or, if you will, logic, a term I use interchangeably with reasoning. Our purpose here is to explain, in very broad strokes, the basics of logic and its application to your profession, to describe the mental processes we utilize in reflective thinking. The purpose, quite frankly, is to get you thinking about thinking; or to suggest that if using reflective thinking was good enough for Sherlock Holmes, it should be good enough for you. It is also a plea to avoid making conclusions on the basis of hunch or intuition. Judge Joseph C. Hutcheson of the U.S. Court of Appeals for the Fifth Circuit was fond of saying that decisions may emerge from four separate processes: “first the cogitative, of and by reflection and logomachy; second, aleatory, of and by the dice; third intuitive, of and by feeling or ‘hunching;’ and fourth, asinine, of and by an ass.” Whatever decision making technique you may choose to make in your personal life, when it comes to the legal profession, you have one option only – reflective thinking.

Author copyright retained; posted with permission of the book editors.

logic, forensics, forensic science, law, Aldisert

Abstract:
To describe the role of the courts in contemporary American society is a Janus-faced assignment. It can be a description of what we are, or an expression of what we should be. To propose what we should be requires that we know what we are; to know what we are requires an overview of two centuries of American experience. This makes for a fitting Bicentennial treatment because the beginning point is both natural and familiar. This article surveys key evolutions in the courts these past two hundred years, and concludes with extensive recommendations and reflections on federalism, separation of powers, and the proper, limited role of the modern judiciary.

PDF scan posted with permission of the University of Pittsburgh Law Review.

courts, federal courts, state courts, judges, judging, judicial process, separation of powers, federalism, judiciary, Aldisert, legal history, role of the courts

Abstract:
What does a judge do when he or she decides a case? Benjamin Cardozo posed this question in 1921 and answered it in what has become a classic of American legal literature: The Nature of the Judicial Process. Drawing from his wealth of scholarship and experience as Chief Judge of the New York Court of Appeals, he described the ingredients that enter "that strange compound which is brewed daily in the caldron of the courts." Cardozo's analysis and philosophy examined the accepted definition of the judicial process: What courts do and should do, and how judges reason and should reason in deciding particular cases.

We paraphrase the broad question put by Cardozo three-quarters of a century ago, in the context of the Brennan philosophy of law, and attempt to answer these questions: What did William J. Brennan, Jr. do when he decided a case? What was the the Brennan "Art of Judging"? Is there a legacy from this art and, if so, who are its beneficiaries?

Brennan, Supreme Court, federal courts, courts, judges, judging, judiciary, jurisprudence, judicial process, Aldisert

Abstract:
After twenty-five years as a judge, I find myself somewhat uncomfortable because I am unable to pigeonhole myself into the fashionable categories used by political scientists, respected law professors, lawyers, and both the print and broadcast media to describe judges. I feel somewhat inadequate because I simply don't know if I am a "liberal," "conservative," activist," "strict constructionist," "centrist," "moderate," etc. Although these expressions are so commonplace that obviously many must have an idea what they mean, I'm not quite sure that these expressions are likely candidates for definitional prizes in explaining what they mean. These descriptions probably originated in the political arena as handy one-word pejoratives, but they surely have caught on and are very much with us today.

I have been a judge-watcher for a long time, and my view has been an unusual one, because it has been from the inside looking both out and up; looking out at fellow appellate judge and looking up to the Supreme Court justices who review our work. I do this watching because my avocation, if you call it that, is studying the judicial process. By this I mean a study of methods - of how courts decide cases; an analysis of decisionmaking as it actually takes place and as it ought to take place. As a long time student who still believes he has a long way to go, I put aside, for our immediate purposes, the substantive law that is the product or result of this process. in these pages, I will content myself only with examining the process itself.

The more I think about the judicial process and one-word labels bandied about to describe those who make the process work, the more I'm convinced that this splash and dash is a very ineffective attempt to cover a very complex individual - today's federal judge. This is true when describing any judge, but it is even more so when you describe federal judges, especially federal judges on the appellate hierarchy's two top tiers.

Part I of this expansive article explores theories of "liberal" and "conservative" with regard to legal philosophy and decisionmaking, the "big five" supereminent first principles in the law (e.g. creating and protecting property interests, creating and protecting liberty interests, fulfilling promises, redressing losses caused by breach or fault, and punishing those who wrong the public), jurisprudence, and jurisprudential temperament.

Parts II and III examine "The Judge as Lawmaker" and "The Judge as a Declarer of Public Policy," covering theories and critiques of judicial law - and policymaking. Part IV discusses constitutional law interpretation" by judges, using examples from the bench such as John Marshall and the Warren Court, and exploring the interplay of universal principles and public opinion in light of the "federal courtization" of society, public distrust of state institutions, and the dichotomy between civil and criminal law. Part V focuses on statutory construction and problems of statutory interpretation including interpreting unclear norms and lacunae or nonexistent norms. Part VI highlights the necessity for reasoned elaboration for judicial decisions.

The article concludes that jurisprudence controls ninety percent of the cases before federal judges, and the particular jurisprudential temperament of the judge and his or her legal philosophy do not figure large in affecting the outcome. In the remaining ten percent, the judge's complex personality comes under examination and dissection, and here "[o]ur judges run the gamut from playing the game according to the rules to making up the rules as we play the game."

judges, judging, jurisprudence, judiciary, judicial process, lawmaking, policymaking, Aldisert, judicial philosphy, logic, legal philosophy

Abstract:
This introduction to the twelfth annual Third Circuit Review offers some targeted suggestions to law review writers. It is a valuable exercise to expose appellate opinions to intelligent and thoughtful analysis. As a student of the judicial process, however, I offer two modest suggestions that may increase the quality of professional criticism. If opinion writing is a fine art, writing a criticism is a finer one. First, it is essential that the analyst pinpoint the exact legal dispute between the parties. Second, if the critic cases stones at the opinion writer's reasoning, the stone thrower should recognize the distinctions among the court's reasoning process, the weight given to the arguments, and the court's exercise of value judgement. To implement these suggestions, the critic must fully understand the nature of the judicial decisionmaking process, as well as the sophisticated structure of "legal reasoning."

Those who take the time to prepare criticisms of judicial opinions make a valuable contribution to the law. But, be as careful in your criticism of opinions as you would have the authors be. A professional critic, student or practitioner, is a pathologist of the law, performing post-mortems. Always be certain that you examine the entire anatomy of the opinion, that you know the proper nomenclature for all its relevant parts, and that your examination is thorough enough and accurate enough to identify and justify your observations. If you do this, you will be preserving the tradition of the American law review at its finest.

Third Circuit, review, Aldisert, opinion writing, legal scholarship, legal writing, law reviews, legal criticism, judges, judging, judicial process, judiciary, jurisprudence, federal courts, courts

Abstract:
One of the most serious deficiencies in legal literature today is the paucity of books and articles written by judges. It is melancholy that academia has preempted a field once invigorated by the perspective of judges and practitioners. The punishing caseload of the state and federal judiciary is a factor: the more opinions that have to be written by judges, the less time they have to write books and articles. But, retired judges finally have time to do some serious writing on the law. And this is the recommendation that I make for every retired judge--trial or appellate, state or federal: Make yourself heard on scholarly issues, such as the high cost of delivering legal services today and the disaster of the federal notice pleading rules. Because our active judge are totally overburdened with day-to-day caseloads, the leadership in writing serious articles on court matter must come from retired judges.

judges, judging, judiciary, legal scholarship, legal writing, judicial process, Aldisert, cost of legal services, pleading rules

Abstract:
The American law review constantly subjects the work of appellate courts to intense, critical scrutiny, to a jurisprudential dissection of our opinions, to a microscopic examination of the jural sinews and fibers that compose the body of our published work. Law reviews indeed constitute an extremely valuable, extra-judicial laboratory in which our various specimens are meticulously studied and then evaluated as healthy or pathological.

Any judge sensitive to the activity or reputation of his or her court should welcome the diagnosis. In a system of government where the executive and legislative branches are constantly subject to public review at the ballot box, but where appellate judges are lifetime or long-term, it is the law review that serves as an informal check and balance; informal and unstructured, to be sure, but nevertheless, a respectable and ever-present force.

In this spirit, it becomes appropriate to discuss rules and measures by which judicial opinions should be evaluated. I do not suggest anything revolutionary. Guidelines and standards for reviewing an opinion are the same as those utilized in writing an opinion. For this reason, I believe that the writer and the reviewer should approach an opinion from the same vantage point. A common approach would produce continuity, and thus yield meaningful analyses to the readerships of both opinions and law reviews.

PDF scan posted with permission of the Duquesne Law Review.

opinion writing, legal writing, legal scholarship, law reviews, law review writing, legal criticism, appellate law, opinions, judges, judging, judiciary, judicial process, Aldisert

Abstract:
Too many trial lawyers appear before appellate courts without realizing that the environment on appeal is a galaxy away from that of the trial courtroom. This article applauds efforts toward optimal training in law school for students to participate in handling criminal appeals, and provides a sample of advice and observations from the bench on how to write an appellate brief and manage a case on appeal.

clinical education, appellate law, appeals, court of appeals, judicial process, legal education, criminal appeals, Aldisert

Abstract:
Judge Aldisert's views on the six qualities that make an ideal appellate judge: (1) the quality of being fair, just, and impartial; (2) the twin qualities of devotion and decisiveness; (3) the quality of clarity of thought and expression; (4) the quality of being professionally literate; (5) the quality of institutional fidelity; and (6) the quality of political responsibility.

PDF scan posted with permission of the Pennsylvania Bar Association.

judges, judging, judiciary, judicial process, what makes a good judge, Aldisert

Abstract:
Article adapated from remarks given to a scientific audience (the Academy of Forensic Science). Judge Aldisert suggests that there is science in the legal profession, just as there is measure, methodology, system and regularity to the discipline of the conventionally scientific professions, physical or social. But, legal science describes a reasoned body of principles for the administration of justice; a body of principles, not a compilation of detailed rules or a compendium of regulations. While legal science does form some parameters -- some limitation on the part of judges to decide cases other than by whim, caprice, or personal inclunation -- the symmetry of law should represent only a means to an end. Although it is desireable that there be a certain degree of scientific law, law must not degenerate into mechanical jurisprudence, wherein the quality of the law is determined by the niceties of its internal structure rather than by the results it acheives.

law, science, judicial process, forensic science, legal forensics, science in law, legal science, Aldisert, forensics

Abstract:
Memorial tribute to Justice Ralph Cappy of the Pennsylvania Supreme Court.

judges, judiciary, Pennsylvania Supreme Court, memorial tribute, Ralph Cappy, Cappy, Aldisert

Abstract:
Essay in memoriam to Judge Max Rosenn, celebrating his life and career in light of Judge Aldisert's "six qualities of an ideal appellate judge."

judges, judging, appellate, judiciary, judicial process, Rosenn, Aldisert

Abstract:
Memorial tribute to Judge Carol Los Mansmann of the Third Circuit Court of Appeals.

judges, judiciary, Third Circuit, memorial tribute, Carol Mansmann, Mansmann, Carol Los Mansmann, Aldisert

Abstract:
Review of the book Super Chief: Earl Warren and His Supreme Court, A Judicial Biography, by Bernard Schwartz.

PDF scan posted with permission of the California Law Review.

Warren, Supreme Court, Schwartz, book review, Aldisert, judiciary, biography

Abstract:
An exposition on the professional competence of the federal appellate bar and judiciary, including examination of the old Code of Professional Responsibily and the new Model Rules of Professional Conduct, comparison of American and Continental European judicial process and legal traditions, and advice on effective appellate advocacy.

PDF scan posted with permission of the Capital University Law Review.

Appellate, professional responsibility, professional competence, aldisert, judicial process

Abstract:
Essay on the problems facing appellate courts, responding to the book Justice on Appeal, by Paul D Carrington, Daniel John Meador and Maurice Rosenberg.

appellate courts, courts, judicial process, judiciary, judges, judging, appellate process, appellate, justice on appeal, Aldisert, Carrington, Meador, Rosenberg

Abstract:
As the world's national economies gradually become more interdependent, domestic commercial regulation, such as our antitrust laws, inevitably has an international impoact. One of the most perplexing problems courts have faced as of late is the proper reach of our antitrust laws in this growing web of economic ties. These laws are of particular concern to our international cousins because of their uniqueness in the landscape of international trade regulation, and the heavy penalties they carry for violations.

Efforts of courts and scholars to determine the reach of United States antitrust laws have led to dubious results. After surveying the terrain in this area, by reviewing two recent cases and analyzing the various factors offered as guidelines, this article suggests a simplified test for exercising jurisdiction, and a method for assisting federal courts in evaluating the foreign interests involved in these cases.

PDF scan posted with permission of the University of Pittsburgh Journal of Law & Commerce.

antitrust, extraterritorial, Aldisert, federal courts, judicial process

Abstract:
The vast amount of personal injury suits resulting from "whiplash" injuries in traffic accidents has led to a serious backlog in United States metropolitan courts. The difficulty comes not from the sheer number of these cases, but from the sheer difficulty of attempting to evaluate injuries falling under the "whiplash" umbrella them in the normal course of personal injuries litigation (unlike a straightforward injury such as a broken leg). As a result, most of these cases go unevaluated, unsettled, and form a very large percentage of the cases clogging various matropolitan court dockets.

Because of the inability or failure of the medical profession to provide the legal profession and the judiciary with a specific diagnoses of the various cervical injuries which can result from "whiplash," much time is lost and confusion prevails. Guidelines of proper evaluation of this type of case are extremely scarce. This article undertakes to do what the medical field has not, and provide a comprehensive survey of the various categories of injuries, both physical and emotional, that may result from "whiplash," and urges better medical diagnostic techniques to correctly identify the actual injury that a plaintiff has suffered.

The problem is one of semantics and proper diagnosis, and not the greediness of the individual plaintiffs. Until such time when particular diagnostic labels are affixed to the particular cervical injury by the doctors, the lawyers and the courts will still have this legal "pain in the neck."

PDF scan posted with permission of the Pittsburgh Legal Journal.

torts, personal injury, whiplash, judicial process, judiciary, judges, judging, judicial efficiency, Aldisert, traffic accidents, state courts, courts, settlement, legal medicine, legal diagnostic techniques

Abstract:
Remarks of Judge Aldisert at Application of Antitrust Laws to Labor-Related Activities Symposium, regarding the confrontation of antitrust law and labor law, with reference to the Bankruptcy Reform Act of 1978 and the National Labor Relations Act.

PDF scan posted with permission of the Duquesne Law Review.

antitrust, labor law, bankruptcy, Bankruptcy Reform Act of 1978, National Labor Relations Act, Aldisert

Abstract:
First in a series of three articles discussing the features of the Allegheny County (Pittsburgh, PA) court system's successful calendar control measures and elimination of backlogged cases.

PDF scan posted with permission of Judicature.

judging, court procedure, calendar control, municipal courts, state courts, backlog, case management, Pittsburgh, Pennsylvania, Aldisert

Abstract:
Overview and discussion of the evolution of Pennsylvania procedural jurisprudence over the previous decade (1955-1965), and examination of where procedural law developments are likely to take us in the future. Highlights "bold new concepts of civil procedure" and the the move away from technicalities of pleadings and procedures in multiple areas of state procedural law (including joinder, causes of action, discovery, judicial administration, and jurisdiction). Notes the difficulty of reforms to simplify and standardize methods and procedures, as "much of the adjective law is as deeply entrenched as is the substantive law."

procedure, civil procedure, judicial process, state courts, state procedure, Pennsylvania, Pennsylvania procedure, Court of Common Pleas, Aldisert, court reform, judges, judging, courts, court administration, judicial efficiency

Abstract:
Response to four symposium papers on issues of federalism and state court adjudication.

PDF scan posted with permission of the William & Mary Law Review.

courts, state courts, federal courts, federalism, 1980s, judges, judging, judiciary, judicial process, Aldisert

Abstract:
State of the Third Circuit Address for 1984 by the Honorable Ruggero J. Aldisert, Chief Judge, addressing the efficiency of court business and advising means of improving the administration of justice within the U.S. Court of Appeals for the Third Circuit. Includes specific discussion of the Bankruptcy Amendments and Federal Judgeship Act of 1984, case load management, simplification of the dispute resolution process, the troubling expansion of federal jurisdiction, and the quality of justice.

courts, federal courts, Third Circuit, judiciary, jurisprudence, judicial process, judges, judging, administration of justice, Bankruptcy Amendment and Federal Judgeship Act of 1984, case load, dispute resolution, federal jurisdiction, Aldisert

Abstract:
Judge Aldisert examines the radical differences between the legal systems of the United States and those of the European Continent, based on research and firsthand travel experiences. This article provides detailed description of the French, German, Polish, Yugoslav and Italian legal systems, judicial structure, procedure, and nature of legal practice in each system, and compares each to the American system.

PDF scan posted with permission of the University of Pittsburgh Law Review.

comparative law, judicial process, European law, French law, German law, Continental law, Italian law, Aldisert

Abstract:
Third in a series of three articles discussing the features of the Allegheny County (Pittsburgh, PA) court system's successful calendar control measures and elimination of backlogged cases.

PDF scan posted with permission of Judicature.

judging, court procedure, calendar control, municipal courts, state courts, backlog, case management, Pittsburgh, Pennsylvania, Aldisert

Abstract:
As a former member of the special bankruptcy legislative committee of the Judicial Conference and chairman of its bankruptcy rules committee, Judge Aldisert clarifies the publicly stated position of the conference and responds to criticism of Chief Justice Burger's opposition to the ultimate compromise legislation that became the Bankruptcy Act of 1978. Addresses the debate over whether bankruptcy judges should have Article III status, lifetime appointments and pensions.

Bankruptcy Act, Judicial Conference, Aldisert, bankruptcy

Abstract:
An important issue that has evaded resolution by the United States Supreme Court is to what extent the principles of the Younger v. Harris sextet apply to civil cases. It is the thesis of this article (published in 1979) that, after eight years, sufficient analysis has taken place to construct a rule comprehensive enough to accommodate both civil and criminal cases. Younger holds that a federal court must restrain its power to enjoin state criminal proceedings, except under extraordinary circumstances where (1) the danger of irreparable injury is both so great and immediate that plaintiff’s federally protected rights are threatened; and (2) that threat cannot be eliminated by defending against a single state prosecution. If this is the test in criminal cases, it seems to me that it should form the basis of the test in civil cases as well. No considerations have been advanced in Supreme Court decisions or elsewhere which persuade me otherwise. Thus I contend that where federal protections asserted by a federal plaintiff can be interposed by him as an effective defense in a pending state civil proceeding, a federal court should withhold its power to enjoin the state proceeding.

PDF scan posted with permission of the Connecticut Law Review.

Younger v. Harris, federal injunction of state proceedings, judicial restraint, federal courts, courts, judges, judging, judicial process, state courts, judiciary, Aldisert

Abstract:
The time is ripe to take a critical look at what federal courts are doing to our house of the law. My view will be that of an insider; it will be through a jaundiced eye. It will be the focus of one who is in his twenty-fifth year as a judge on both the state and federal benches. It is through the eyes of a student of the judicial process, of one who concentrates not so much on the nuances of substantive or procedural law, but on the tools of decision-making. What these eyes see, in short, is this: a system in which there is too much pettifogging about gingerbread and encrustation in the trimmings of our hosue. What Henry Maine once said of the infiltration of Roman law into Western thought also may describe our house: "nearly buried in a parasitical overgrowth of modern speculative doctrine." It is a house in no danger of collapse, yet one to which the lawyers and the judges must turn a hand to make it more attractive, if not more secure. In the final analysis, the housekeeping and the appearance of our house are in our hands, not those of Congress.

courts, federal courts, jurisprudence, judges, judging, judiciary, judicial process

Abstract:
Address by Ruggero J. Aldisert, Chief Judge, at the 49th annual Third Circuit Judicial Conference. Princeton, NJ, September 22, 1986.

Third Circuit, courts, federal courts, judiciary, judges, judging, judicial process, Aldisert

Abstract:
Tribute to Judge Joseph F. Weis, Jr., of the Third Circuit Court of Appeals.

Judge Weis, Weis, tribute, Third Circuit, judges, judiciary, judicial process, Aldisert

Abstract:
The burgeoning federal case load has focused public and professional attention upon the need to better allocate judicial resources. Recent Supreme Court decisions have greatly extended the reach of 42 U.S.C. section 1983, arguably at the expense of judicial economy and established notions of federalism. State prisoners' claims brought under section 1983 have particularly aggravated the problems generated by ever-expanding dockets. At a time when sound judicial management should place a premium upon requiring the exhaustion of state remedies and upon the utilization of state courts to resolve matters that would otherwise be cognizable in federal courts, Supreme Court decisions have displayed precisely the opposite tendency. In this article, Judge Aldisert turns a critical eye towards the implications of these recent developments and suggests that fundamental reforms are in order.

PDF scan posted with permission of the Arizona State Law Journal.

federal courts, courts, judiciary, judicial process, jurisdiction, federal jurisdiction, comity, section 1983, civil rights, federal caseload, federalism, judicial economy, judicial reform, Aldisert

Abstract:
Second in a series of three articles discussing the features of the Allegheny County (Pittsburgh, PA) court system's successful calendar control measures and elimination of backlogged cases.

PDF scan posted with permission of Judicature.

judging, court procedure, calendar control, municipal courts, state courts, backlog, case management, Pittsburgh, Pennsylvania, Aldisert

Abstract:
On the basis of statistics compiled by the Court of Common Pleas of Allegheny County, Judge Aldisert concludes that the majority of cases disposed of by the court should have been in a court of inferior jurisdiction. Analysis of the private costs to litigants and lawyers compels an additional conclusion: many lawyers are seemingly unaware of the cost of processing tort cases. The study also points out that, for purposes of law office economics, the time of settlement of a lawsuit is as important as the amount of the settlement.

courts, state courts, judges, judiciary, judicial process, judicial effectiveness, judicial efficiency, Pennsylvania courts, Court of Common Pleas, Aldisert, settlement, tort law, torts, personal injury law, legal practice, practice of law, trial lawyers

Abstract:
Tribute to University of Pittsburgh School of Law Dean Mark A. Nordenberg.

Pittsburgh, University of Pittsburgh School of Law, legal education, Nordenberg, Mark A. Nordenberg, Aldisert

Abstract:
Acceptance remarks upon receiving the Golden Pen Award from the Legal Writing Institute.

writing, legal writing, judiciary, judicial process, Aldisert

Abstract:
A memorial tribute to James Hunter III of the United States Court of Appeals for the Third Circuit.

Hunter, James Hunter, James Hunter III, Aldisert, memorial tribute

Abstract:
Memorial tribute to Judge A. Leon Higginbotham, Jr., of the U.S. District Court for the Eastern District of Pennsylvania.

judges, courts, federal courts, tribute, Higginbotham, A. Leon Higginbotham Jr., Pennsylvania, judicial process, Aldisert

Abstract:
Book review of Appellate Justice in England and the United States: A Comparative Analysis, by Robert J. Martineau. Commentary and response to Martineau's assessment of the English appellate system.

comparative law, appellate law, appellate justice, judicial process, judges, judging, jurisprudence, judiciary, English law, Aldisert