Judges don’t have to put up with litigants’ sniping in the media | The Hill

By Thomas Moukawsher / September 26, 2023 /

Perhaps President Donald Trump has crossed the line with his comments about court proceedings. Or perhaps he hasn’t. Let’s now consider the merits. Regardless of this particular case, judges never have to put up with parties who publicly attack themselves, lawyers, witnesses or prosecutors with lies. In criminal proceedings, the judges have a hammer to wield in…

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The Needless Complexity of Our Courts | Governing

By Thomas Moukawsher / September 25, 2023 /

Most people with a case in court can’t understand what goes on in a lawsuit and are increasingly unwilling to accept what comes out of it. For reasons unknown to them, the case goes round and round for years without reaching its merits, and then the parties are forced to settle because their money and…

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What Donald Trump’s case teaches us: Litigation takes forever | The Hill

By Thomas Moukawsher / August 30, 2023 /

Forget for a moment whether former President Donald Trump deserves to float or sink amid the waves of lawsuits washing over him. Consider instead what this sea of trouble teaches us about the state of our legal system. Jan. 6, 2021, is more than two and a half years behind us. Yet only now are…

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Why Can’t I Make Sense of Judges’ Decisions?

By Thomas Moukawsher / July 20, 2023 /

It’s not your fault. It’s because most decisions are written in a secret formula known to most judges and lawyers but not really understood even by them. The formula has its origin in formalist legal thinking.  As you might imagine, formalist legal thinking places the form of a legal ruling over its substance. Judges of…

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America Should Rethink Litigation and Adopt More Humanist Courts | Bloomberg Law

By Thomas Moukawsher / June 26, 2023 /

The contemporary American lawsuit focuses on its own form rather than the human problem that prompted it. Starting with a needlessly complicated complaint, it’s followed by years of maneuvering about its adequacy, generating massive amounts of discovery. For any of a half-dozen reasons, it never gets to trial. The result often baffles the parties and…

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Humanism Should Replace Formalism In The Courts | Law360

By Thomas Moukawsher / April 11, 2023 /

Contemporary American judges have more in common with Medieval monks than just wearing robes. Today’s courts are dominated by formalists. After reviewing decisions from the last several months—about guns, abortion, and industrial pollution—they remind me of work by the 13th and 14th Century scholastics, dominated by the monks who dictated thinking in Europe prior to…

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Judges: Guard ‘your honor’ | ABA Journal

By Thomas Moukawsher / March 7, 2023 /

I’m a judge, and I admit it: I like being called “your honor.” Call me entitled if you want, but I disagree with the Kentucky federal judge who made headlines last fall for saying that modesty forbids him from accepting this distinction. U.S. District Judge Benjamin Beaton claimed in a May 2022 speech, which was…

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Judges Should Avoid Herd Mentality and a Default to Precedent | Bloomberg Law

By Thomas Moukawsher / February 28, 2023 /

Judges know a lot about consensus. Consistency is an important attribute of a legal system. That’s why precedent from a higher court must be followed by a lower court. But sometimes judges go too far, treating like binding precedent anything other judges have said. They do this even when the other judge is their equal,…

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