This article explores the advantages and disadvantages of referring discovery matters in complex cases to special masters. In the first section Brazil explains how the results of his earlier research into the discovery system exposed problems that the appointment of masters might help solve. He then describes the kinds of pretrial tasks and roles federal courts have assigned to special masters and the ways that using a master can expedite and rationalize the case development process. In the second half of the article, the author assesses the major objections to delegating judicial responsibilities to masters and the problems that frequent appointments might cause. Along the way, Brazil offers practical suggestions to judges about how to avoid potential difficulties and how to maximize the effectiveness of this increasingly popular procedure.

In contrast to Anglo-American lines of professional development, the central agent of professionalization in many Continental countries was the state bureaucracy. However, this article proposes that an understanding of the class structure of traditional society is also needed to explain the privileged position of lawyers. An historical study of lawyers in the 19th century, after Finland was annexed by Russia, demonstrates that the legal profession provided the nobility an important medium of adaptation to the new society. The importance of the legal profession initially to the state bureaucracy, and subsequently to the nobility, explains its social prominence and its future development. An analysis of the position and needs of the prominent classes in the society of Old Regimes may constitute a fruitful viewpoint in the study of early professionalization in the Continental context more generally.

Political scientists analyze the global rise of judicial appointment commissions as a response to judicialized politics. They argue that appointment processes have formalized to include more constituencies now affected by judicial decisions. This article presents evidence from Southern Africa confounding their expectations. In this region, formalization has social as well as political origins. Over the last two decades, the senior judiciary has suddenly become subject to the same demands for organizational accountability and descriptive representation that sociologists of other professions have been documenting for decades. Throughout the region, therefore, it has become increasingly difficult to defend opaque practices inherited from British (and South African) colonialism. Twenty years ago, Namibia, Botswana, Lesotho, and Swaziland/Eswatini all recruited most appellate judges from abroad through informal channels. In every country, this system has come under pressure from a variety of local sources. Yet those demanding reform have always been able to mobilize new international orthodoxies that require the judiciary to represent its society and make itself accountable to profane, external audiences. These new orthodoxies have acquired an unusual power in Southern Africa thanks to their embodiment in South Africa’s own post-apartheid transition, and long-standing moral imperatives to “localize” senior expatriate positions in postcolonial states.

In January 1980 the Commission on Evaluation of Professional Standards released a draft of proposed Model Rules of Professional Conduct. That draft is not a final draft, nor even a tentative one, but a Discussion Draft. By that title, and by the appearance of the draft in typescript the Commission has attempted to convey that the proposed Rules are a series of ideas meriting discussion, not fixed positions that we are prepared to aggressively defend. We know that the Discussion Draft requires editorial revision, that its substance needs additional refinement, that its policies deserve reconsideration. But after two and one-half years of dialogue, study, drafting, debate, and redrafting, we thought the Model Rules would gain much from the fresh perspective and critical appraisal that others could provide. To that end we solicited comments from lawyers and the public hoping to stimulate a public discussion of the role of lawyers in American society. That discussion will ultimately lead to a final draft of proposed Model Rules that reflects the best thinking of our profession as a whole.

Robert Burns has written an important book on an institution that, while central to systems of criminal and civil justice, has been curiously neglected by academic lawyers. Some reasons for this neglect are addressed in an oblique fashion in his book, for they are linked to what he has described as the “Received View” of the trial. In this view, the trial is a formal process of fact finding and law application, where roles and responsibilities of judge, counsel, and jury are laid down according to a predetermined understanding of the rule of law. Since the trial is viewed merely as a mechanism for law application, academic lawyers have, by and large, preferred to focus on the appellate decisions that are seen as shaping the substance of the law. However, there are other reasons for this neglect, and they are linked to more recent trends in the academic study of the law. The sociological study of civil and criminal justice has been concerned with processes of plea bargaining and settlement, and with other means of diverting cases from the formal institutions of law, in seeking to argue that in practice the trial is not central to the operation of law. And while the critical legal studies movement has criticized the formalism and abstraction of legal scholarship, it has not sought to anchor the study of law in the concrete practices of legal institutions such as the trial, but instead in the social and political forces that shape law making—a position that has largely accepted the formalist account of the trial as a forum of rule application. We thus have two significant schools, one pulling toward the abstraction of rules from the context of their application, the other pulling towards the context in which rules are used or created, and the trial has been left somewhere in the middle.

Anyone interested in the current doings of the antibiotics antitrust litigation in the spring of 1975l could easily have found seating in the public section of the courtroom of Judge Miles A. Lord in Minneapolis. An instantly striking aspect of the courtroom was that, in contrast to the scattering of young attorneys and an occasional curious onlooker in the public section, there were dozens of people crowded into the area around the central raised bench on which Judge Lord sits. Several attorneys represenr: the defendants-five of the major drug manufacturing companies in the United States. Numerous counsel for the plaintiffs were grouped around a large table to Judge Lord's right. Clerks, court reporters, and marshals sat beneath the bench. The most remarkable feature of the crowd, however, was the presence of two jury boxes containing two separate juries. In fact, two different trials in six different cases were proceeding at once. “Jury One” was hearing evidence in actions brought by the United States, two national classes (one of insurance companies and the other of union health and welfare funds), and a California medical group. “Jury TWQ” was hearing evidence in suits brought in behalf of competitors of the defendant drug companies. For the most part, the juries were hearing evidence common to both sets of cases. When evidence was introduced that was relevant to only one set of cases, the other jvry would be excused.