Digital Sheet Music for Siciliana to Donovan Gray by Gloria Wilson Swisher, scored for Piano Solo, id
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The Judicial Conference has lobbied  for legislation "which would effectively overrule Lexecon by statutory amendment. Indeed, the chair of the MDL Panel could not be more straightforward:. Put aside the rather novel scene of the chair of an inferior tribunal denigrating a decision of the Supreme Court of the United States. The more important point is that the pursuit of settlement without offering a trial is both unwise—and a defense ploy. Some, believing that any settlement is preferable to any trial, may consider this a desirable outcome.
All litigants bargain in the shadow of trial. Those averse to the inevitable uncertainties of the direct democracy of the American jury will factor the risks of trial into their settlement postures. Failure to arrive at a mutually acceptable settlement should, and in most cases does, result in a trial. In MDL practice, however, it is solely the transferee judge who controls the risk of trial. The litigant who refuses to settle can never get back to his home court to go before a local jury unless the transferee judge agrees.
Once trial is no longer a realistic alternative, bargaining shifts in ways that inevitably favor the defense. After all, a major goal of nearly every defendant is to avoid a public jury trial of the plaintiffs claims. Fact finding is relegated to a subsidiary role,  and bargaining focuses instead on ability to pay, the economic consequences of the litigation, and the terms of the minimum payout necessary to extinguish the plaintiffs claims. Commentators generally agree that MDL practice favors the defense.
MDL proceedings are described as a "delaying tactic used by defendants" which "consume a great deal of time. Larson, Comment, Lexecon, Inc. Milberg Weiss Beshad Hynes and Lerash: A Defense Perspective, Litig. Plaintiffs lose control over the management of their case. This "strategy allows the defense counsel to attempt to secure a  transfer order or conditional transfer order before the original federal district court determines, and in some cases even hears, the anticipated motion to remand.
This case illustrates this problem. The defendants here removed the action to federal court. Though this Court was able to rule on the motion to remand, it did not have sufficient time to issue a memorandum explaining its order prior to the conditional transfer order. Judge Hodges is, of course, correct when he says, "Well, of course some parties want centralization; some don't", Hodges Interview at 10, but a more accurate statement would be "Defendants generally want centralization; plaintiffs generally don't.
It is precisely because MDL practice is perceived so clearly to favor the defense that Congress appears to have lost confidence in a judicial management mechanism that once had such great promise. Code without the request of a majority of plaintiffs. Were transferee judges content to workup transferred cases for trial on a reasonably short time schedule, sensitive to the fact-finding contributions to be made by the American jury in the district where congressionally mandated venue is proper—while at the same time exerting every effort to settle all those cases amenable to settlement—perhaps MDL practice might earn back the respect it has lost.
A shining example of this technique is Judge Jack. See supra note 8. This case illustrates how all this works in America today. Dean Delaventura "Delaventura" commenced this putative class action on March 21, in the Massachusetts Superior Court sitting in and for the County of Suffolk on his own behalf and on behalf of others similarly situated. See Notice of Removal [Doc.
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Seeking to avoid federal court and MDL practice, the complaint stated a single cause of action for breach of contract. See Notice of Removal. Columbia also filed a motion to stay the proceedings while it pursued its efforts to fold this case into an already existing MDL docket involving "market timing" issues.
Delaventura opposed the motion to stay, see Mem. Columbia filed an opposition to the motion to remand. The parties filed respective reply briefs. This Court granted an expedited hearing,  held on June 14, See Electronic Clerk's Notes June 14, Delaventura had moved to remand the matter to state court, asserting that his class action suit "allege[d] a single cause of action for breach of contract on behalf of certain holders of mutual fund shares", and that his complaint, therefore, was not preempted by SLUSA.
Delaventura argued that this Court's decision in Meyer v. Putnam Int'l Voyager Fund, F. He asserted that this case—which alleged that Columbia's market-timing activity related to certain representations and warranties included in a prospectus and thus constituted a breach of contract—resembled Meyer, where shareholders alleged a breach of fiduciary duty as a result of market-timing activity.
Columbia argued that Delaventura failed to demonstrate a reason why this market-timing case should not be heard by the MDL. Columbia Opp'n at 2. Further, Columbia argued that this Court's decision in Meyer, upon which Delaventura placed great weight, was decided prior to the creation of this MDL panel.
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Columbia contended that there was no good reason this matter should not be decided together with other similar matters in the MDL. At the close of the hearing, the Court denied Columbia's motion to stay and took Delaventura's motion for remand under advisement. The Court stated expressly, "If the multi-district litigation panel orders [the case] transferred[,] they'll do so over my opposition[,] which I now state on the record. I don't agree that this case be transferred. On July 28, this Court entered an order denying Delaventura's motion to remand.
In its order, this Court indicated that a memorandum explaining the rationale for its decision would follow. This Court had found persuasive Columbia's substantive argument that, given applicable case law, the misrepresentation claims were, in actuality, "in connection with the purchase and sale of securities" and, as such, preempted by the federal law.
On August 10, , however, upon application by Columbia, this matter was ordered transferred to the Northern Division of the District of Maryland, and the case before this Court was closed. The Judicial Panel on Multi-District Litigation follows a courteous practice of advising the district judge who may lose a case as follows: Terrell Hodges to Hon.
Mortgage Lending Practices Litigation.
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This Court received no comparable letter in this case and does not know whether the panel was ever advised of this Court's opposition to the transfer. Current Muti-District Litigation practice is seriously flawed in that it is perceived to proceed not on neutral principles but in a manner that favors defendants. Were Congress to override Lexecon, this imbalance would be exacerbated and the already diminished role of the American jury further marginalized.
This Court's offer to try this case in July of still stands. Should the transferee court have the case ready for trial then— or any time thereafter—and be willing to return it, it will be promptly tried here in Boston.
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See generally Michael G. Occasionally, Congress uses its powers to "regulate" the courts' jurisdiction simply to strip disfavored classes of access to a judicial branch Congress mistrusts. United States, F. C ; Enwonwu v. It is reported that, having successfully eliminated the district courts, the executive will move on to eliminate the circuit courts as well. To the extent that jurisdiction continues to inhere in the courts of appeal, the executive is already arguing that it—not the judiciary—must do the constitutional fact finding.
See Oral Arguments, Enwonwu v. At some point, of course, such restrictions on habeas jurisdiction implicate the Suspension Clause of the Constitution. The criticisms of MDL are many: It is also observed that "in the rush to file cases, baseless claims may be filed. Additionally, MDL often gives rise to choice of law issues. Further still, MDL fails to "address the problem of competing class actions in different states, or in both federal and state courts.
Rosenthal, Proposals for Further Study: Materials at It reached its apogee during the period , when the Hon. Schwarzer was Director of the Federal Judicial Center. A distinguished judge and author, see e. The Trial Judge's Role, 61 Judicature , Judge Schwarzer is an outspoken advocate of managing toward settlement. See also David S. Clark, Adjudication to Administration: Fiss, Against Settlement, 93 Yale L.
Fiss, Out of Eden, 94 Yale L. Holland, The Twilight of Adversariness: Trends in Civil Justice, in Philip Dubois, ed. June , at 14; Arthur R. Miller, The Adversary System: Marie Provine, Report, Settlement Strategies for Federal District Judges, Federal Judicial Center criticizing academics and praising "settlement-oriented judges" who have a "fundamental commitment to enhancing settlement opportunities in federal courts".
Today, there is something of a judicial backlash against making settlement the central goal of our federal court processes. The District of Massachusetts is called a "pocket[ of resistance" to the settlement culture. I trace this reawakening of interest in our traditional trial processes to a moving speech given on April 26, to the annual meeting of chief district court judges by Hon. Chief Judge Anderson there issued a powerful call to devote ourselves to the core function of the judicial office—the fair and impartial trial of cases.
Alex Sanders, one of America's foremost jurists, minces no words:. Trial judges should return to being trial judges, instead of docket managers. They should start treating jury trials as a vindication of the justice system rather than a failure of the justice system. They should revere and respect the jury trial as the centerpiece of American democracy.
These numbers are particularly startling in light of the enormous increase in litigation over the same 40 year period. Keker, The Advent of the "Vanishing Trial": Young, An Open Letter to U. Lawyer, July , at I describe her as a trial judge for the irony, and because conducting trials was part of her job description. In reality, however, a "coerced settlement" or "enter-my-courtroom-and-I'll-make-you-pay" or "anti-trial" judge would be a more accurate moniker. This jurist was happiest in her business suit, at her desk in chambers, in conference with trial attorneys, cajoling and imploring and yelling.
She was never thrilled to find herself draped in a robe, in a courtroom, sitting on high. The judge's distaste for trials was a bit about efficiency, but not much. The judge's problem with trials was more spiritual: With trials, outcomes are contingent on unpredictable jurors and wooden rules of evidence.
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And yes, trials cost money and, especially, time. In the judge's view, their costs far outweighed their benefits. When cases are handled in a package or group instead of one at a time, it is hard, if not impossible, for the lawyers or the judge to maintain time-honored concepts of due process and the adversary system. This is not always to be avoided. The adversary process has its limits.
As a society, we have already abandoned the adversary system in labor disputes and issues involving the dissolution of marriage, preferring instead almost any solutions that will accommodate a continuing modus vivendi. As the text demonstrates, in MDL practice fact finding generally appears far less important than forging some global settlement. Nor is this the only area once reserved for jury determination where today federal judges advance what they perceive to be more compelling goals than allowing our citizens independently to ascertain the facts.
Such misguided efforts generally meet with disappointing results. His way or the highway. Music is one of those subjects where you should be able to assert an opinion without being rebuked. But, even in non-music matters he is like this. It's just he personality, but be prepared for possible personality conflicts when you take his class. I have little to no respect for this man. He is a manipulator to no end.
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If you get at all involved in music building politics, you WILL butt heads with him. He is stubborn, unhelpful, and not open to criticism or suggestion at all. He is not only disrespectful to students, but more so to other professors! Probably one of the most frantic conductors I have ever had. Is consistently out of time, either speeding up, usually, or slowing down. Rehearsals really don't accomplish much.
If you don't believe me take a listen to a wind ensemble recording- pretty sloppy and out of tune. I wish that he didn't have as much controll over the scholarships as he do. He is a great guy, in and out of class. Always there to listen. He's understanding, but he also wants you to do your best, which is why he challenges you.
He can get disappointed when you don't do as well as he thinks you can, but he's really just encouraging you all the way. He can be a "tish" excited at times, but it makes Wind Ensemble fun. He is the best ensemble director I have ever had! I love his conducting style and he chooses really interesting pieces. Definitely an awesome teacher! He is an amazing man that really cares about his students The man is full of knowledge, love, and compassion!
If you get the chance get to know him! On a scale of he's an eleven. I know it, I know it! He's the "get on the band wagon" sort of guy. Ads can be annoying, but they allow us to provide you this resource for free. If you use an ad blocker, we're not getting that revenue that helps keep RateMyProfessors. Help guide your fellow classmates by giving them the inside scoop! They'll do the same for you. Hope you had a good semester. We're all counting on you.