Monday, November 13, 2017

JOTWELL: Effron on Trammell on precedent and preclusion

The new Courts Law essay comes from Robin Effron (Brooklyn, visiting at Notre Dame), reviewing Alan M. Trammell, Precedent and Preclusion, ___ Notre Dame L. Rev. (forthcoming), which considers the due-process connections of precedent and preclusion. 

I am anxious to read Alan's piece, as the distinction between precedent and preclusion is central to a theory of judicial departmentalism.

Posted by Howard Wasserman on November 13, 2017 at 03:06 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (1)

Monday, October 30, 2017

New ACS Brief on Local Voting Rights

The ACS has just published my new issue brief -- a condensed version of a longer GW Law Review article -- on local expansions of the right to vote. Here is the abstract:

The right to vote is a fundamental right inherent in the U.S. Constitution and all state constitutions. Most scholarship on this right focuses on only federal or state law and omits discussion about how local law may also confer this right. In his new Issue Brief, “Expanding Voting Rights Through Local Law,” Professor Joshua A. Douglas of the University of Kentucky explores how cities and towns across the country are expanding the right to vote in municipal elections to include sixteen- and seventeen-year-olds, noncitizens, nonresident property owners, and others. He argues that municipalities can serve as “test tubes of democracy” that may experiment with different voting rules, and these expansions can then spread to other municipalities and even up to states or Congress. Douglas concludes that when examining these local laws, courts should defer to those that expand the franchise, while training a more skeptical eye on laws that restrict voter access.

If for no other reason, you should read it because it starts with a reference to The West Wing! (Ah, if only Jed Barlet was our president...)

 

Posted by Josh Douglas on October 30, 2017 at 03:35 PM in Article Spotlight, Law and Politics | Permalink | Comments (2)

JOTWELL: Erbsen on Lahav on Procedural Design

The new Courts Law essay comes from Allan Erbsen (Minnesota), reviewing Alexandra Lahav, Procedural Design. This is a great paper and it and the review are good reads.

Posted by Howard Wasserman on October 30, 2017 at 02:18 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Thursday, October 12, 2017

JOTWELL: Mullenix on Symeonides on forum-selection clauses

The new Courts Law essay comes from Linda Mullenix (Texas), reviewing Simeon Symeonides, What Law Governs Forum Selection Clauses?, ___ La. L. Rev. (forthcoming).

Posted by Howard Wasserman on October 12, 2017 at 09:58 AM in Article Spotlight | Permalink | Comments (0)

Thursday, September 28, 2017

JOTWELL: Walsh on Pfander and Birk on Article III adversity

The new Courts Law essay comes from Kevin Walsh (Richmond) reviewing the pieces of a three-article exchange between James Pfander and Dan Birk against Ann Woolhandler over the requirement of adversity under Article III and the idea of non-contentious adjudication.

Posted by Howard Wasserman on September 28, 2017 at 11:36 AM in Article Spotlight | Permalink | Comments (0)

Monday, September 18, 2017

JOTWELL: Smith on Baude on Qualified Immunity

The new Courts Law essay comes from new contributor Fred Smith (Emory), reviewing William Baude, Is Qualified Immunity Unlawful?, 106 Cal. L. Rev.  (forthcoming 2018). This is a great article that Justice Thomas citing in his concurring opinion in Ziglar and that I cited to extensively in updating the immunity sections of Civil Rights book.

Posted by Howard Wasserman on September 18, 2017 at 04:14 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (1)

Wednesday, July 19, 2017

JOTWELL: Lahav on Kessler on the rise of legal adversarialism

The new Courts Law essay comes from Alexandra Lahav (U Conn), reviewing Amalia Kessler, Inventing American Exceptionalism: The Origins of American Adversarial Legal Culture (Yale University Press). Lahav focuses on the way in which equity practice relied on a non-adversarial, judge-centered system (something Kessler has written about before) and how adversarialism arose from that.

Posted by Howard Wasserman on July 19, 2017 at 11:11 AM in Article Spotlight | Permalink | Comments (0)

Tuesday, June 20, 2017

CFP: Idaho Law Review Symposium: Terry v. Ohio at 50

CALL FOR PAPERS OR PRESENTATIONS

The University of Idaho College of Law’s 2018 Idaho Law Review symposium issue will study the impact of Terry v. Ohio, a decision nearly 50 years old.  The symposium will be held on April 6, 2018 at the Idaho Law & Justice Learning Center, the College of Law’s Boise location. We invite original paper submissions for presentation at the symposium, as well as panel proposals.

The symposium will explore the impact that Terry and its endorsement of stop-and-frisk has had on communities of color, policing, and even national politics. We welcome a variety of proposals, including those that provide a narrative account of Terry and its aftermath, as well as those related to civil rights litigation, how stop-and-frisk is understood or misunderstood, Terry’s doctrinal importance, and its use in practice. At least one panel featured at the symposium will highlight how Terry impacts policing in Idaho. Additional issues that may be addressed include:

·      What was the result of the Court’s decision to downplay racial profiling in Terry?

·      Does the public believe that stop-and-frisk is unconstitutional?  If so, why?

·      How do outstanding arrest warrants affect the use of stop-and-frisk?

·      What was the impact of the Section 1983 litigation regarding the NYPD’s use of stop-and-frisk?

·      Should Terry be overruled?

Symposium papers or presentations addressing the topics above—or others proposed—will be presented at the conference, with publications appearing in the Symposium volume in Spring, 2018.  We will also consider proposals for presentations without written contributions. 

Draft abstracts of no more than one page and queries may be addressed to Patxi Larrocea-Phillips, Chief Symposium Editor, at larr1384@vandals.uidaho.edu, as soon as possible and no later than July 31, 2017.

Travel expenses will be paid for presenters of accepted papers or presentations.

This is an exciting year for the University of Idaho College of Law. Our dual location model comes full circle this fall as we welcome our first Boise 1L section. Students now have the option of completing their legal education at either our Moscow or Boise locations. Learn more about the dual location model here.

Posted by Howard Wasserman on June 20, 2017 at 12:31 PM in Article Spotlight | Permalink | Comments (0)

Friday, June 16, 2017

JOTWELL: Leong on Mika on gender disparity before SCOTUS

The new Courts Law essay comes from Nancy Leong (Denver), reviewing Jennifer Mika, The Noteworthy Absence of Women Advocates at the United States Supreme Court (Am. U. J. of Gender, Soc. Pol'y & Law 2017), which measures the gender disparities among SCOTUS advocates.

Posted by Howard Wasserman on June 16, 2017 at 09:50 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (1)

Monday, June 05, 2017

JOTWELL: Levy on Grove on judicial independence

The new Courts Law essay comes from Marin Levy (Duke), reviewing Tara Leigh Grove, The Origins (and Fragility) of Judicial Independence (forthcoming Vand. L. Rev.).

Posted by Howard Wasserman on June 5, 2017 at 09:56 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Tuesday, May 30, 2017

The Miranda App

On the theme of disrupting law, I thought I would end my month here on Prawfsblawg talking about an idea Richard Leo and I came up with about how to re-imagine the Miranda warnings and waiver process.

In a forthcoming article “The Miranda App: Metaphor and Machine” – part of Boston University Law Review's Symposium on Miranda's Fiftieth Anniversary – we came up with the idea of replacing the all-too-human Miranda warnings and waiver process with an automated interactive computer program.  As we summarize:

This Article proposes bringing Miranda into the twenty-first century by developing a “Miranda App” to replace the existing, human Miranda warnings and waiver process with a digital, scripted computer program of videos, text, and comprehension assessments. Accessible on a smartphone, computer, tablet, iPad, or other system, the Miranda App would provide constitutionally adequate warnings, clarifying answers, contextual information, and age-appropriate instruction to suspects before interrogation. Designed by legal scholars, validated by social science experts, and tested by police, the Miranda App would address fifty years’ worth of unsatisfactory Miranda process. Each of Miranda’s core warnings would be communicated via interactive digital graphics, animation, video, and text. Explanations would accompany each word and legal concept. Short comprehension tests would be built into the system to evaluate a suspect’s general understanding of language and law. Additional clarification would be available to address confusion about terminology, process, or rights. In addition, as designed, the Miranda App could generate a contemporaneous record of useful data about the suspect’s current capacity, literacy, understanding, and familiarity with constitutional rights. The App would be free, simple to use, easy to understand, and would provide the clarity and finality lacking in current Miranda practice. After custody, a police officer would simply hand over the Miranda App to the suspect and hand off the responsibility to explain or advise suspects to the machine.  The goal is not simply to invent a better process for informing suspects of their Miranda rights, but to use the design process itself to study what has failed in past practice. This Article includes not only the blueprints for Miranda’s future, but also a rendering of the structural weakness of past doctrine.

The impetus for this change is the recognition that “[a]s many scholars have argued, lamented, and documented over the years, Miranda has largely failed in the last five decades to achieve its core mission of reducing custodial pressure and compulsion while eliciting genuinely voluntary and knowing consent to police interrogation.”  The hope is to use the creation of a Miranda App to rethink – as both metaphor and machine – the existing practice.

Obviously, the pros and cons of such a change deserve serious consideration (and debate) and we spend almost 60 pages wrestling with the history, practice, and meaning of Miranda in the article.  Happy to hear anyone's thoughts about the design concept or the potential for creating a prototype. 

Finally, thank you everyone for engaging with me this month, and, special thanks to Howard and the Prawfsblawg family for the invitation to blog about my various interests and ideas.  Until next time…

Posted by Andrew Guthrie Ferguson on May 30, 2017 at 09:27 PM in Article Spotlight | Permalink | Comments (2)

Monday, May 22, 2017

JOTWELL: Thomas on Wistrich and Rachlinski on implicit bias

The new Courts Law essay is from Suja Thomas (Illinois), reviewing Andrew J. Wistrich and Jeffrey J. Rachlinski, Implicit Bias in Judicial Decision Making: How It Affects Judgment and What Judges Can Do About It, a forthcoming book chapter in a volume exploring implicit bias in the judicial system.

Posted by Howard Wasserman on May 22, 2017 at 10:47 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Monday, May 08, 2017

JOTWELL: Mulligan on Subrin & Main on state procedural rules

The new Courts Law essay comes from Lumen Mulligan (Kansas), reviewing Stephen N. Subrin & Thomas O. Main, Braking the Rules: Why State Courts Should Not Replicate Amendments to the Federal Rules of Civil Procedure (Case Western Reserve L. Rev), which argues against "reflective" state emulation of the Federal Rules.

Posted by Howard Wasserman on May 8, 2017 at 11:12 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Monday, May 01, 2017

Congress: Step Away from the Class Action!

My previous posts noted that, for libertarians, there is no simple algorithm for fixing the class action.  Despite this, there is a once-a-decade push from right-of-center think tanks for a congressional class action “fix.”

The problem with this, I’ve suggested, is that congressional legislation in this area tends toward crude categorization and simple algorithms. First, the intensity of interest group attention to class actions tends to push reform in directions that serve blunt private interests of portions of the practicing bar, at the expense of more complex public values.  Second, class action reform has long been an important battleground for partisan identity signaling—one does not get on the good side of the base of either party by arguing for a nuanced treatment of class litigation (although, as Adam Zimmerman highlighted in a comment, there are signs this may be changing). 

Both problems explain Congress’s tendency, evident in features of the Fairness in Class Action Litigation Act, to take some arguably useful refinements of the class action law in the private market class action and reflexively extend them to public rights litigation, where those refinements may do more harm than good. 

That’s why I tend to agree with Myriam Gilles that it is better to leave reform of certification standards, at least in the near term, to the Court, which is much better adapted than contemporary Congresses to make the often nuanced institutional judgments that certification doctrine demands.  Libertarians and progressives may not agree on every feature of class action reform, but they ought, I would argue, to agree on that much.

It’s a position, by the way, I’ve come to reluctantly:  I’ve argued elsewhere that separation of powers principles favor a more robust role for congressional oversight of the class action.

But I’ve also come to appreciate that the Court can capture some of the benefits of functional political branch oversight in the class action area by replicating that oversight “in house,” through a system of intrabranch or “internal” separation of powers.  This is something I explore, by the way, in this new draft piece.

Anyway, thanks to Howard and Prawfs for having me—and apologies to the Prawfs management for infrequent posts. I’ve been pulled in ten different directions this month at my home institution, making this a much busier April here in Chicago than I expected!

Posted by Mark Moller on May 1, 2017 at 03:56 AM in Article Spotlight, Civil Procedure | Permalink | Comments (0)

Monday, April 24, 2017

JOTWELL: Thornburg on Hoffman on plausibility pleading

The new Courts Law essay is from Elizabeth Thornburg (SMU), reviewing Lonny Hoffman, Plausible Theory, Implausible Conclusions (U. Chi. L. Rev. Online), in which Hoffman responds to William H.J. Hubbard, A Fresh Look at Plausibility Pleading, (U. Chi. L. Rev.).

Posted by Howard Wasserman on April 24, 2017 at 03:47 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Tuesday, April 04, 2017

JOTWELL: Pfander on Morley on equity

The new Courts Law essay comes from Jim Pfander (Northwestern-Pritzker), reviewing Michael T. Morley, The Federal Equity Power, arguing that Erie principles should affect how federal courts wield equitable power.

Posted by Howard Wasserman on April 4, 2017 at 10:16 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Thursday, March 23, 2017

JOTWELL: Campos on Glover on claims as property

The new Courts Law essay is from Sergio Campos, reviewing J. Maria Glover's A Regulatory Theory of Legal Claims (Vand. L. Rev.), which considers the implications of understanding legal claims as property.

Posted by Howard Wasserman on March 23, 2017 at 10:16 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Wednesday, March 08, 2017

JOTWELL: Malveaux on Selmi and Tsakos on the effects of Wal-Mart v. Dukes

The new Courts Law essay comes from Suzette Malveaux (Catholic), reviewing Michael Selmi & Sylvia Tsakos, Employment Discrimination Class Actions After Wal-Mart v. Dukes (Akron L. Rev.), which argues that Wal-Mart has not been the feared death knell for employment-discrimination class actions.

Posted by Howard Wasserman on March 8, 2017 at 09:31 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Monday, February 13, 2017

CFP: 2d Annual Ad Law New Scholarship Roundtable

The Ohio State University Moritz College of Law is pleased to host the Second Annual Administrative Law New Scholarship Roundtable on June 27-28, 2017, in Columbus, Ohio.

The Roundtable is the creation of four schools—Michigan State University, University of Michigan, Ohio State University, and University of Wisconsin—each of which has committed to hosting the Roundtable during one of the first four years of the Roundtable.

The Roundtable will bring together a mix of emerging and established scholars to present new work on Administrative Law. Participants will present their papers in small panel sessions designed to foster rich discussions with experts in the field and contribute to a vibrant Administrative Law community. Each panel will be led by a distinguished scholar who will facilitate the discussion. Confirmed commentators currently include Emily Hammond (George Washington), Lisa Heinzerling (Georgetown), Jon Michaels (UCLA), Nick Parrillo (Yale), Peter Shane (Ohio State), Cathy Sharkey (NYU), and Glen Staszewski (Michigan State). In addition to the paper panels, a lunch program will address current issues in Administrative Law and institutional resources for empirical research projects.

Scholars wishing to participate in the Roundtable and present a paper must submit a one-to-two-page abstract by Friday, March 17, 2017. Applicants should include their title, institutional affiliation, and number of years teaching in the academy. Preference will be given to those who have been teaching nine years or less in a tenure-track position. Abstracts should be sent to Chris Walker at walker.1432@osu.edu. You may also contact Chris Walker or Peter Shane with any questions you may have about the Roundtable.

The Roundtable will provide meals for all participants. Participants must cover their own travel and lodging costs. We will reserve a block of reasonably priced rooms at a local hotel in advance of the Roundtable.


Administrative Law New Scholarship Roundtable Host Committee

Posted by Howard Wasserman on February 13, 2017 at 09:31 AM in Article Spotlight, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Friday, February 03, 2017

JOTWELL: Wasserman on Segall on Eight is Enough

I have the new Courts Law essay, reviewing Eric Segall's Eight Justices Are Enough: A Proposal to Improve the United States Supreme Court, which proposes codifying the current eight-Justice/even partisan divide on the Court.

We moved up publication on this piece to time it with the Gorsuch nomination, which either spells the death knell for the proposal or gives it life.  I remain unsure whether I am sold on Segall's plan as a normatively best design or whether it just looks good compared with the political alternative. But it has some genuine merit. Iwill have more to say in a second post.

Posted by Howard Wasserman on February 3, 2017 at 09:04 AM in Article Spotlight, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Monday, January 23, 2017

JOTWELL: Mullenix on Stancil on rulemaking and economic theory

The new Courts Law essay comes from Linda Mullenix (Texas), reviewing Paul Stancil, Substantive Equality and Procedural Justice (Iowa L. Rev., forthcoming), which applies economic analysis to the rulemaking process (contra, Linda argues, the many of us procedural scholars who are doctrinalists).

Posted by Howard Wasserman on January 23, 2017 at 04:49 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Thursday, January 05, 2017

JOTWELL: Steinman on Delaney on avoidance

The new Courts Law essay comes from Adam Steinman (Alabama), reviewing Erin F. Delaney, Analyzing Avoidance: Judicial Strategy in Comparative Perspective (Duke L.J.), which explores ways that judges on different courts avoid difficult decisions.

Posted by Howard Wasserman on January 5, 2017 at 01:54 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Monday, December 19, 2016

JOTWELL: Tidmarsh on Fitzpatrick and Norris on discovery costs

The new Courts Law essay comes from Jay Tidmarsh (Notre Dame), reviewing Brian T. Fitzpatrick and Cameron T. Norris, One-Way Fee Shifting after Summary Judgment, discussing new and creative ways to reduce discovery costs and delays.

Posted by Howard Wasserman on December 19, 2016 at 10:33 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Tuesday, December 13, 2016

Tort Law and the Sharing Economy

Six weeks ago, a UK employment tribunal declared that Uber drivers are employees. A few months before that, Uber settled two class action lawsuits in the US in order to avoid a ruling on whether drivers can remain independent contractors. And Uber regularly takes the position that it is not subject to the regulations that apply to taxi services. Sharing economy companies go to great lengths to shun traditional business models (and the legal and regulatory structures that come along with them). While regulation of the sharing economy remains a major issue, tort law is an important complementary concept – and the subject of my new article, Sharing Tort Liability in the New Sharing Economy.

Because sharing economy companies often avoid traditional employment relationships, they complicate the analysis under some long-standing tort law doctrine, particularly when a tort victim is negligently harmed by a worker in the gig economy. But traditional tort law concepts are already well-equipped to adapt to this new world of ad-hoc transactions. For ridesharing in particular, liability challenges may be solved with vicarious liability doctrines – especially joint enterprise liability. An Uber driver, for example, may be unable to bear the brunt of liability when a passenger, pedestrian, or other driver is negligently harmed. In the traditional economy, vicarious liability would solve the under-compensation problem. But sharing economy companies purport to merely “connect” providers with customers, thereby skirting the traditional relationships that would give rise to liability. 

Nonetheless, vicarious liability may still attach. First, respondeat superior applies if Uber drivers are deemed employees. Even if drivers are independent contractors, vicarious liability may still attach, such as when they are engaged in a non-delegable duty (like safety). But, at the very least, courts should consider joint enterprise liability: sharing economy companies embark on a joint venture with service providers for a shared profit motive, which could amount to a joint enterprise for the purposes of vicarious liability.

Regulatory challenges are certainly at the forefront of legal issues surrounding the sharing economy, but retrospective tort remedies can help minimize harm and prevent over-regulation. Further, tort law may prove even more important under an administration that vows to cut regulations across the board. Thus, a sound approach to dealing with the sharing economy involves a look at both tort law and regulation and, in my article, I suggest that vicarious liability principles be used liberally to ensure fairness and adequate compensation. By clarifying liability issues under tort law, we can enable policymakers to proceed with a holistic understanding of how retrospective tort remedies already address some of the unique issues in the sharing economy.

Posted by Agnieszka McPeak on December 13, 2016 at 11:24 AM in Article Spotlight, Employment and Labor Law, Torts, Web/Tech | Permalink | Comments (1)

Thursday, December 08, 2016

JOTWELL: Effron on Gardner on Forum Non Conveniens

The new Courts Law essay comes from Robin Effron (Brooklyn), reviewing Maggie Gardner, Retiring Forum Non Conveniens (forthcoming N.Y.U. L. Rev.).

Posted by Howard Wasserman on December 8, 2016 at 11:02 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Wednesday, November 30, 2016

Sponsored Post: Learning Criminal Procedure

The following post is by Ric Simmons (The Ohio State University Moritz College of Law) and Renee M. Hutchins (University of Maryland Carey School of Law) and is sponsored by West Academic.

The ABA, employers, and students themselves tell us that law schools must do more to produce students who are better equipped to enter the practice of law.  The goal of complete practice-readiness might be something of a tall order.  True competence in even one area of the law may take five or even ten years to develop.  We have our students for just three.  But, there is certainly much more we can be doing to make our students what we will call “practice-primed.”  There are steps we can take during those three years to ensure that the students have the basic knowledge they will need as young lawyers.  There are things we can do to ensure students are exposed to a fuller array of the skills they will need in practice, not just the narrow range that has been the focus of more traditional approaches to the curriculum.  This is a large part of the reason we came together to write the Learning Criminal Procedure.

And, so many former students report back that they are using the book precisely as we intended:  First, as a learning tool to expose them to criminal procedure doctrine.  And, then as a desk reference to help them navigate the early years of practice as defense attorneys or prosecutors.

As a learning tool, Learning Criminal Procedure eschews the traditional method of law school teaching, which asks students to read cases and then derive the law by parsing through the court’s decisions.  Instead, the book presents the applicable legal rule to the students in the very first section of each chapter. The next section uses case summaries to explore the scope and policy behind the rule. The book takes this approach because it frees up class time for you and your students—instead of guiding them through the cases to eventually arrive at the rule, you can start with the rule and then use the text in class to engage students with the doctrine in the many ways students will see the doctrine deployed in practice.  For example, when teaching students about Terry’s stop-and-frisk doctrine, you might first work through each of the review problems that we present at the end of each chapter, allowing students to immediately apply the knowledge they have learned and use the law as a practitioner would.  After you have a sense that students have a preliminary grasp on the material, you can then do a deeper dive.  For example, you might explore one of the simulations mapped out in the Teacher’s Manual and require your students to use their newly acquired knowledge in the dynamic environment of role play.

As a desk reference, your students can use the book to refresh their knowledge and inform their thinking after they have moved out into practice.  The book’s clear organization and direct approach to presenting the law make it easy for new lawyers to refer back to the book when they have a specific legal question.  Indeed, former students routinely report back that the book has been essential to them as they bridge the gap between law school and the early years of practice.  Just the other day, a former student reported that his first draft of a response to a suppression motion had been adopted with few changes by the supervising attorney at the state prosecutor’s office.  “Your book was essential to that draft,” the student said.  Mission accomplished.

Posted by Howard Wasserman on November 30, 2016 at 09:31 AM in Article Spotlight, Blogging, Howard Wasserman, Sponsored Announcements | Permalink | Comments (0)

Tuesday, November 29, 2016

Five lessons on body cams

Elizabeth Joh (UC Davis) has this piece in Slate identifying five problems that have arisen with the implementation of police body cameras, which she turns to five lessons on the limits of technology to, alone, resolve problems. I especially appreciate points # 2 (do not adopt technology without also working out the regulatory details of how the tech will be used) and # 3 (rank-and-file police may, and have, resisted new technology). I have covered both in my writings on the subject.

Posted by Howard Wasserman on November 29, 2016 at 09:18 AM in Article Spotlight, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Friday, November 25, 2016

JOTWELL: Walsh on Bray on national injunctions

The new Courts Law essay comes from Kevin Walsh (Richmond), reviewing Samuel Bray's Multiple Chancellors: Reforming the National Injunction, which uses traditional equity principles to critique the increasingly run-away practice of district courts entering nationwide (more accurately, universal) injunctions prohibiting enforcement of federal law against all persons in all places, beyond just the named plaintiffs. Amanda Frost reviewed the same piece for SCOTUSBlog.

And the timing is appropriate, as District Judge Amos Mazzant of the Eastern District of Texas did it again this week, issuing a nationwide injunction against the new Labor Department overtime regulations.

Posted by Howard Wasserman on November 25, 2016 at 09:31 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Friday, November 11, 2016

JOTWELL: Grossi on Klonoff on introducing the study of American law

The new Courts Law essay is a guest piece by Simona Grossi (Loyola), reviewing Robert Klonoff's casebook Introduction to the Study of U.S.Law.

Posted by Howard Wasserman on November 11, 2016 at 09:25 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Thursday, November 03, 2016

Whitman on Transferring Negotiable Notes

Property Scholar Dale Whitman has just published an article, entitled "Transferring Nonnegotiable Notes", explaining where the law is and where it needs to go with respect to the transfer of the right to enforce mortgage loans.  This issue has been one of the most confused and contested questions of legal interpretation in the aftermath of the Foreclosure Crisis.  When the whole housing finance system began to unravel upon the unexpectedly high volume of mortgage defaults, un-tested and unorthodox industry practices regarding loan transfer ran smack into legal uncertainty regarding who held what rights to which loans subject to what defenses.  This legal uncertainty stuck like a rod in the gears of the foreclosure system, causing massive delays and, in some cases, loss of the right to enforce the loan.  

The question of mortgage negotiability and transfer adequacy has caused a "vast amount of litigation" (as Whitman puts it), and this litigation has "greatly expanded our understanding" regarding how negotiable notes are transferred. But there remains a gap in legal comprehension related to the transfer of nonnegotiable notes.  In addition, open questions regarding defenses can destabilize the market and incentivize market player misbehavior. Professor Whitman attempts to bring clarity to the murky legal questions regarding who has (and should have) the right to enforce the loan and what defenses a borrower can (and should be able to) assert against an assignee of a mortgage note. 

Professor Whitman is perhaps the most recognized the national expert on the subject of note negotiability and transfer adequacy.  His most recent article adds an important piece to the secondary mortgage market puzzle, in terms of understanding what went wrong, what rights parties have with respect to defaulted mortgage loans, and how the law should evolve to create a fairer, more stable mortgage capital market.

Here's the abstract:

This article reviews what we know about transferring ownership and the right of enforcement of nonnegotiable notes. The focus will be on notes secured by mortgages, since this is likely the context in which most modern nonnegotiable notes are created. There has been a vast amount of litigation about the transfer of negotiable mortgage notes in the past half decade, greatly expanding our understanding, but there has been little development involving nonnegotiable notes. Hence, it is helpful to compare negotiable and nonnegotiable notes, with particular emphasis on how each is transferred. Perhaps ironically, this means that the bulk of this article discusses negotiable notes as a point of reference, despite the fact that its ultimate focus is nonnegotiable notes. Part I of this article reviews the history of the definition of negotiability, and shows how our current understanding of negotiability came to be. Part II demonstrates how to tell the difference between negotiable and nonnegotiable notes, and why that difference is important. Part III discusses the meaning of “transfer” of a promissory note. Part IV examines specifically how the right to enforce nonnegotiable notes can be transferred under present law, and considers whether changes are needed. Finally, this article concludes with a brief description of a proposed national mortgage registry that has the potential to make transfers of both negotiable and nonnegotiable mortgage notes far more efficient without disrupting the current legal regime.

This article is a good resource not only with respect to the legal requirements for transferring nonnegotiable notes, but also for:

  1. The history and background of the Holder in Due Course doctrine.
  2. How to identify whether a note is negotiable (including Fannie/Freddie forms and notes secured by FHA and VA mortgages)
  3. How negotiable notes (and the mortgages securing them) must be transferred
  4. The impact of UCC Article 9 on transfers of both negotiable and nonnegotiable notes.

To me,  a very interesting and important part of the piece,  particularly the part that deals with the current applicability of the Holder In Due Course doctrine to mortgage loan transferees.  Professor Whitman articulates why this doctrine should not apply to mortgage notes, and I wholeheartedly agree.  For one thing, in a typical mortgage transaction, loan buyers are expected to conduct due diligence with respect to the quality of the credit and collateral behind the mortgage loan.  The secondary market players, of course, want the holder-in-due-course doctrine to apply, because it allows for incompetent underwriting by their industry and insulates them to some extent from illegal practices of mortgage originators.  Professor Whitman makes the compelling economic and political argument that the Holder In Due Course doctrine should not continue to apply to mortgage notes. He writes:

If the holder in due course doctrine was abrogated, and secondary market investors were forced to bear the risk of fraudulent conduct by their originators, their costs would doubtlessly rise, either to screen out the “bad apples,” or to suffer the financial losses engendered by the originators’ bad behavior.  If the private securitization industry, which has been virtually shut down since mid-2007, manages to arise again, its economics could be significantly affected by loss of the protection it has hither-to received from the holder in due course doctrine.

Nonetheless, sound economic policy strongly favors repeal or drastic modification of holder in due course. The reason hinges on the relative availability of information about the propensity of particular loan originators to engage in bad conduct. Consumer borrowers, who enter the mortgage market only at infrequent intervals and who typically have only a limited and unsophisticated understanding of its operations, have virtually no factual basis for identifying and avoiding originators who are apt to engage in fraud, and they cannot gain this sort of information at any reasonable cost. Secondary market investors (including securitizers), on the other hand, participate in the market on an ongoing or regular basis, and commonly buy loans by the thousands. Their costs in identifying and policing bad actors, when spread over a large number of loans, are likely to be quite modest. As a matter of sound economics, it is obviously more efficient to impose these risks on the parties who can best identify and avoid them. As a lawyer and an economist from the Federal Reserve Bank of Cleveland put it, if the holder in due course rule were abandoned, we could expect the following result: "By forcing the market to internalize the cost of consumer compliance and spread it across all consumers, the market’s ability to adjust costs [would be] aligned with the incentive to minimize costs that result from a competitive marketplace.” In the absence of assignee liability, these incentives are not aligned. The holder in due course rule artificially lowers the cost of consumer compliance to the market, eliminating the incentive to minimize those costs through competition. Consumers, then, bear the risk of unlawful origination practices, but lack the ability to price them into credit.

These problems arise in the context of residential mortgage loans because of the assumption by courts that mortgage notes on Fannie and Freddie forms (and FHA and VA insured notes) are negotiable.  Although standard form use does not negotiability make, Professor Whitman admits that it is likely that the Fannie/Freddie forms will continue to be seen as negotiable by courts.  The same need not be true, says Whitman, for commercial mortgage notes.

Enforcement rights with respect to negotiable notes generally requires possession of the note, but transfer of nonnegotiable notes is subject to different rules.  There is a concept under UCC Article 3 of a non-owner of the note who can enforce it - the PETE (person entitled to enforce the note).  UCC 3's PETE status is applicable only to negotiable instruments, however.  Therefore, if a note is not negotiable, enforceability by a non-owner turns on principles of the common law as well as UCC Article 9.  Note ownership is based on the principle of "follow the money and see where it goes."  And although that is an interesting question in some contexts, it is irrelevant to the question of who is entitled to collect payments, enforce the obligation, and negotiate a modification with a borrower.  In modern loan securitization parlance, the servicer should be entitled to enforce the note, even though the servicer is not the owner (the owner, of course, is the beneficiary - the entity that owns the securitized pool of mortgages).   

Among the many prior articles that Professor Whitman has written on the broader subject of mortgage loan transfer and enforcement, see:

  • Dale A. Whitman, How Negotiability Has Fouled up the Secondary Mortgage Market, and What To Do About It, 37 PEPP. L. REV. 737 (2010).
  • Dale A. Whitman & Drew Milner, Foreclosing on Nothing: The Curious Problem of the Deed of Trust Foreclosure Without Entitlement to Enforce the Note, .66 ARK. L. REV. 21 (2013).
 

Posted by Andrea Boyack on November 3, 2016 at 03:10 PM in Article Spotlight, Corporate, Property | Permalink | Comments (0)

Tuesday, November 01, 2016

Questioning Thomas

RonNell Anderson Jones (Utah) and Aaron Nielson (BYU) have posted on SSRN Clarence Thomas the Questioner, (forthcoming in Northwestern Law Review), which analyzes a collection of questions Thomas has asked from the bench over the years, concluding that he is a "model questioner." Highly recommended, as the saying goes.

The conclusion is consistent with stories I have heard from former SCOTUS clerks, who tell about the (rare) questions from Thomas being significant to the argument.

Posted by Howard Wasserman on November 1, 2016 at 11:36 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (2)

Monday, October 24, 2016

JOTWELL: Vladeck on Thomas on the loss of the jury

The new Courts Law essay comes from permaprawf Steve Vladeck (Texas), reviewing Suja Thomas's book The Missing American Jury: Restoring the Fundamental Constitutional Role of the Civil, Criminal, and Grand Juries.

Posted by Howard Wasserman on October 24, 2016 at 12:54 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Thursday, October 13, 2016

JOTWELL: Coleman on Rosenbaum on RICO and class action attorneys

The new Courts Law Essay comes from Brooke Coleman (Seattle), reviewing Briana Rosenbaum, The RICO Trend in Class Action Warfare (Iowa L. Rev.) (forthcoming), exploring the use of RICO actions against class-action plaintiffs' lawyers.

Posted by Howard Wasserman on October 13, 2016 at 09:31 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Thursday, October 06, 2016

Cities as "Test Tubes of Democracy" for the Right to Vote

Over eighty years ago, Justice Louis Brandeis famously referred to states as “laboratories of democracy” that can experiment with different laws to see what works best. “A single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” As I show in a new article (abstract after the jump), if states are laboratories of democracy, then cities and towns can be "test tubes of democracy" that can and should experiment with election law rules on an even smaller scale.  (Side note: my twitter handle is @JoshuaADouglas. Can we figure out a way to make #TestTubesofDemocracy start trending?!)

Local experimentation on the right to vote is already occurring around the country.  Cities and towns have expanded voting rights for 16- and 17-year-olds, noncitizens, and nonresident property owners (e.g., in vacation towns).  That is, cities have expanded the electorate for their own elections.  

This November, San Francisco voters will decide on whether to lower the voting age to 16 for all city elections and allow noncitizens to vote in school board elections.  At first I was skeptical when I began looking into these local laws, especially on the merits of lowering the voting age to 16.  But the more I researched -- particularly studies on cognitive development -- the more convinced I became that it is a good idea.  Later this month I'll spend some more time on the policy merits of lowering the voting age.  Here, I want to focus on where this is occurring: at the local level.

Most people think of the right to vote as a federal constitutional right, or perhaps a right derived from state constitutions.  But focusing on these two sources leaves out an important level of inquiry: local laws.  A complete understanding of the right to vote requires three levels of analysis: federal constitutional law (and statutes), state constitutional law (and statutes), and local laws for local elections.

The common understanding of the right to vote is that it enjoys protection under the U.S. Constitution, specifically within the Equal Protection Clause.  But as I have discussed in previous research, the Supreme Court has unduly cabined the federal constitutional protection of the right to vote.  Indeed, the Court has said that the U.S. Constitution does not confer the right to vote to anyone.  All that the Constitution requires is that once a state grants the right to vote, it must treat everyone equally.

State constitutions, however, explicitly confer the right to vote.  In fact, 49 of the 50 state constitutions have specific language that goes beyond the U.S. Constitution in explicitly granting and protecting voting rights (Arizona is the only exception, but its courts have ruled that other language in the state constitution protects the right to vote).  In the wake of restrictive federal court jurisprudence, litigants have turned to state constitutions.  This strategy has seen some successes; for example, in recent years at least 3 state courts have invalidated voter ID laws under state constitutions.

But federal and state constitutions do not tell the whole story.  Municipalities have expanded the electorate for their own elections.  In essence, cities and towns have adopted a broad theory of their own local democracy to include additional voters, such as younger people or noncitizens.  To understand fully the right to vote, then, we need to include a discussion of these local laws.

We should encourage local experimentation on the right to vote.  Ours is a history of continued expansion of voting rights.  From a normative perspective, democratic representation is enhanced with greater participation of those who are cognitively capable and have a genuine and actual stake in the outcome.  Local expansions of the right to vote adhere to a notion of localized federalism.  People are closest to their local representatives and local democracy.  Further, municipal laws are easier to enact than state or federal laws, so novel local experimentation is a lot more likely to pass.  And if it shown to "work" in one courageous city, then local laws can have a "trickle across" effect to other cities and eventually may "trickle up" to state policy.  Thus, broader movements on expanded voting rights can start at the local level, with local successes serving as catalysts for more widespread reforms.

I explore all of these issues in a forthcoming article, The Right to Vote Under Local Law.  The abstract is below.  I'll turn to some additional findings from this article in future posts -- including a policy defense of lowering the voting age!  The takeaway for now is that localities can, and should, serve as test tubes of democracy for election law.

A complete analysis of the right to vote requires at least three levels of inquiry: the U.S. Constitution and federal law, state constitutions and state law, and local laws that confer voting rights for municipal elections. But most voting rights scholarship focuses on only federal or state law and omits any discussion of the third category. This article — the first to explore in-depth the local right to vote — completes the trilogy. Cities and towns across the country are expanding the right to vote in municipal elections to include sixteen- and seventeen-year-olds, noncitizens, nonresident property owners, and others. San Francisco, for example, will decide soon whether to lower the voting age to sixteen for its elections. This article highlights these developments, encourages local voter expansions, and provides a test for courts to use when facing a judicial challenge to these rules. If states are “laboratories of democracy” that may experiment with social policies, then municipalities are “test tubes of democracy” that also can try out novel democratic rules, such as broadening the right to vote, on a smaller scale. Historically, some voter expansions, such as the elimination of property requirements and the women’s suffrage movement, enjoyed early successes at the local level. Local voting rights, then, can serve as catalysts for broader reforms as they “trickle across” to other municipalities and “trickle up” to states and Congress. As a matter of policy, local jurisdictions should enfranchise anyone who has a sufficient stake in local affairs and has the proper incentives and ability to make informed choices about who should lead them — which might include sixteen- and seventeen-year-olds, noncitizens (who are legal permanent residents), nonresident property owners, felons, or others. States with barriers to local voting laws, through substantive voter qualifications or lack of “home rule” authorization to localities, should amend their state constitutional provisions or statutes. (An Appendix presents a 50-state chart on the possibility in each jurisdiction of enacting local voting laws.) Courts should defer to local laws that expand the right to vote as a means of local democracy, but should not defer to restrictions on the right to vote because limiting who may vote harms the ideal of democratic inclusion. Robust protection of the right to vote depends on local voting rules as an early component of the reform effort. Enhanced local voting rights will produce a more representative local government, create a habit of voting for various groups such as younger voters that will ameliorate low turnout, and strengthen local democracy.

Posted by Josh Douglas on October 6, 2016 at 09:23 AM in Article Spotlight, Law and Politics | Permalink | Comments (3)

Saturday, September 24, 2016

JOTWELL: Erbsen on Gilles on arbitration and doctrine

The new Courts Law essay comes from Allan Erbsen (Minnesota), reviewing Myriam Gilles, The Day Doctrine Died: Private Arbitration and the End of Law (U. Ill. L. Rev.), exploring how the use of private dispute resolution, especially arbitration, affects the evolution of legal doctrine.

Posted by Howard Wasserman on September 24, 2016 at 03:43 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Wednesday, September 21, 2016

"Like Pulling Teeth": Lessons for law schools from the 1980s dental school crisis

Eric Chiappinelli (Texas Tech) recently posted a new article on SSRN that analyzes the dental school crisis of the 1980s to draw lessons for currently struggling law schools. It is a very interesting article.  Highlights and my thoughts after the jump.

While readers of the blog are surely familiar with many of the issues facing law schools, I assume that most are less familiar with the dental education crisis of the 1980s. As Chiappinelli explains, an influx of federal spending (through research grants and federal student loans) encouraged the proliferation of dental schools (from 39 in 1943 to 60 in 1980). And students flocked to these dental schools, with the number of dental school students increasing from ~12,000 in 1950 to ~23,000 in 1980. However, like with law schools, darker days were ahead.

Although the inflection point for law schools appears to have been the 2008 financial crisis, fluoride was the game-changer in the dentistry world.  By the late 1970s, enough people had grown up drinking fluorinated water that demand for dentistry's bread and butter services--filling cavities, pulling teeth and creating dentures--flattened. Around the same time, Congress grew concerned that it was contributing to the build-up of excess dentists and dramatically pared back its financial support for dental schools. In 1981, dental schools found that their revenue had suddenly declined by one-third, but their expenses continued to steadily increase. In short, dental schools were in a crisis that appears remarkably similar to the law school crisis.

Like other financially strained post-secondary education institutions, dental schools sought to balance their budgets by shifting away from tenure-track faculty and toward adjunct and other untenured faculty. Dental schools sought additional support from state governments, but state governments had their own financial troubles. Chiappinelli reports that many dental schools were able to shift some costs to students by significantly raising tuition. As a result, dental student debt increased by over 50% from 1978-1981 and doubled by 1990. However, rising debt combined with a lack of good dental jobs resulted in "a rapid and severe reduction in the number of people applying to dental school." Applicant quality, measured by their incoming credentials, dropped simultaneously. Again, echoes of the law school crisis.

Eventually, 12% of all U.S. dental schools closed. While every closed school operated at a loss, Chiappinelli notes that many that were operating at a loss did not close. Clearly, finances were only part of the story. In Part IV of his article, Chiappinelli works to identify other factors that were relevant to determining whether to close a dental school and to apply those lessons to struggling law schools. Rather than finances or operational aspects of dental schools, Chiappinelli concludes that a "school's intentional focus on mission and engagement . . . are particularly important . . ." Thus, law schools should--in Chiappinelli's view--do the following: (i) "ensure that their actions are aligned with the university's mission", (ii) "engage with their university and their relevant professional and lay communities", (iii) use clinics to demonstrate that the law school is aligned and engaged with the university's mission, and (iv) hire deans who can highlight for the university that the law school's mission is aligned with the university's, including how the law school brings prestige to the larger university.

I think that Chiappinelli's broadest point is clearly correct. In times of retrenchment, every enterprise needs to (re)consider its value proposition. Any law school that finds itself out-of-step with its affiliated university risks finding its support dry up. And I think the analogy from dental schools to law schools is a valid one, which is why I've also been working on a piece comparing distressed dental schools to other distressed colleges and universities. There are important lessons that can be learned. Nevertheless, there are at least two reasons to question the comparison.

First, it is my sense that many universities see their law schools as a "crown jewel" of the university system. As such, law schools may simply be viewed differently than dental schools, which apparently were often (but not always) perceived to lack prestige and quality compared to the rest of the university. Second, dental schools were never profitable, "as nearly every dental school loses money from continuing operations, if for no other reason than the clinical aspects of dental education cost more than they produce in revenue." By contrast, law schools were long seen as profit centers for their universities. As such, a university might be willing to subsidize losses for a longer period of time if university officials can be convinced that the law school crisis will eventually abate.

Glad to share more thoughts, but this post is already too long. It's my view that 3-4 paragraphs is the ideal blog post length. But if you're still with me, thanks for reading the whole thing.

Posted by Matthew Bruckner on September 21, 2016 at 07:37 AM in Article Spotlight, Culture, Current Affairs | Permalink | Comments (12)

Friday, September 16, 2016

The New Constitutional Right to Post-Conviction Habeas

For decades, the dominant working assumptions of the Supreme Court's post-conviction habeas corpus jurisprudence have been that (1) federal post-conviction remedies are generally a matter of legislative grace; and (2) as Justice Alito reiterated last Term in his concurrence in Foster v. Chatman, "[s]tates are under no obligation to permit collateral attacks on convictions that have become final, and if they allow such attacks, they are free to limit the circumstances in which claims may be relitigated." In a new paper we've just posted to SSRN, Carlos Vázquez and I argue that, in its January 2016 decision in Montgomery v. Louisiana, the Supreme Court directly rejected the first assumption, and, in the process, indirectly but necessarily undermined the second. 

To make a long story short, although Montgomery looked like a fairly typical habeas retroactivity case under Teague v. Lane (asking whether Miller v. Alabama fit into an exception to Teague's general bar on retroactive enforcement via habeas of "new rules" of constitutional law), it had a jurisdictional wrinkle--to wit, why the Supreme Court had appellate jurisdiction over the Louisiana state court's holding that Miller was not retroactive under Teague. Although the parties defended the Court's jurisdiction on the ground that the state court's analysis of Miller was "interwoven" with federal law (and thus not independent thereof), Justice Kennedy's majority opinion based the Court's jurisdiction on a much broader conclusion--that the exception to Teague for new "substantive" rules of constitutional law is constitutionally grounded, and thus directly binds the states (as a matter of federal law) in their post-conviction proceedings. Thus, Montgomery recognized for the first time at least some circumstances in which the Constitution (and not just the federal habeas statute) confers a right to a post-conviction remedy--at bottom, to enforce new "substantive" rules of constitutional law handed down by the Supreme Court after the petitioner's conviction became final.

The much more interesting question (to which we turn in Part II of our paper) is the forum in which such a remedy is constitutionally required. As we argue (in some detail), the Supreme Court’s Supremacy Clause jurisprudence, especially the 2009 decision in Haywood v. Drown, establishes that the constitutionally required collateral remedy recognized in Montgomery must be available, in the first instance, in state courts—even if the state has not chosen to provide collateral post-conviction relief for comparable state-law claims. Indeed, as we explain, the state courts also have the constitutional power and duty to afford such relief to federal prisoners, but Congress has the power to withdraw such cases from the state courts by giving the federal courts exclusive jurisdiction (even implicitly) over such claims. Thus, we conclude that the state courts are constitutionally obligated to afford collateral post-conviction review to state prisoners in the circumstances covered by Montgomery, and that the federal courts should be presumed to have the statutory obligation to afford such review to federal prisoners. 

Needless to say, this analysis calls into question at least some features of contemporary post-conviction habeas jurisprudence (especially for second-or-successive federal petitioners), and raises a bunch of questions about how far beyond Teague's substantive exception this newfound right to collateral post-conviction review extends. We try to sketch out some thoughts on these issues in Part III, but if we're right about the importance of Montgomery (especially in light of Haywood), then we hope our paper is the beginning of a much broader academic and judicial reassessment of the scope and shape of contemporary collateral post-conviction remedies, not the end. 

And, although it should go without saying, we'd surely welcome comments, suggestions, and feedback...

Posted by Steve Vladeck on September 16, 2016 at 10:11 AM in Article Spotlight, Constitutional thoughts, Steve Vladeck | Permalink | Comments (12)

Friday, September 09, 2016

JOTWELL: Thornburg on Gilles on class actions and low-income litigants

The new Courts Law essay comes from Elizabeth Thornburg (SMU), reviewing Myriam Gilles' Class Warafre: The Disappearance of Low-Income Litigants from the Civil Docket (Emory L.J.), which explores the disparate effects of restrictions on aggregate litigation on low-income litigants.

Posted by Howard Wasserman on September 9, 2016 at 10:10 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Thursday, September 01, 2016

What to expect this month

Since my modest reputation doesn't usually precede me by very far, please let me introduce myself a bit. I am starting my third year as an assistant professor at Howard University School of Law, where I teach contracts, consumer financial law, bankruptcy and commercial law classes. I write primarily about bankruptcy issues. This month, I intend to primarily blog about the business of higher education. To get a flavor of what I intend to write about, you can check out my earlier blog posts and my forthcoming article on the topic. But I also intend to use this platform to highlight interesting scholarship by other commercial law/bankruptcy folks and to note interesting developments in the consumer law or contracts law spaces.

Thanks to everyone at Prawfs for having me this month! I'm excited to contribute to the community, instead of just obsessing over the submission angsting threads. 

Posted by Matthew Bruckner on September 1, 2016 at 11:00 AM in Article Spotlight, Blogging | Permalink | Comments (0)

Wednesday, August 31, 2016

Bard Signing In

Let me start my third visit to Prawfs Blog with warm thanks to Howard Wasserman and to my fellow bloggers for the work they have done keeping this forum going. As the public information about Professor Markel’s murder becomes increasingly lurid, I’d rather focus on his work than on the circumstances of his tragic death. And from the beginning his work on this blog was to provide legal academics a forum to talk to each-other about matters of interest to them—whether it was highlighting a new study, commenting on a case or talking about legal academe.  

As a brief self introduction, I’m starting my second year as the very proud dean of the absolutely amazing University of Cincinnati College of Law. Every day I hear something about what one of our faculty, alumni, staff or students are doing and I’m proud to have a role in sustaining the framework that allows these things to happen at our historic law school. So I’m going to talk about legal education. But as an engaged health law academic specializing in ethical issues in public health, the unchecked spread of Zika in the United States is also going to be a topic of discussion. Thank you for having me. It is a real honor to be included.

Posted by Jennifer Bard on August 31, 2016 at 09:37 PM in Article Spotlight, Blogging, Culture, Current Affairs, Dan Markel, Howard Wasserman, Information and Technology, Life of Law Schools, Lipshaw | Permalink

Tuesday, August 23, 2016

Inside the agency class action

A quick flag for a new article from Michael Sant’Ambrogio (Michigan State) & past-guest Adam Zimmerman (Loyola-LA), Inside the Agency Class Action. This piece builds on some posts Adam wrote here, as well as some reports by the Administrative Conference of the US that Sergio Campos wrote about for JOTWELL.

Posted by Howard Wasserman on August 23, 2016 at 04:28 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Wednesday, August 17, 2016

JOTWELL: Steinberg on lawyers and strategic expertise

The new Courts Law essay comes from guest contributor Jessica Steinberg (George Washington), reviewing Colleen F. Shanahan, Anna E. Carpenter & Alyx Mark, Lawyers, Power, and Strategic Expertise (Denv. L. Rev.) (forthcoming), an empirical study of when and why having counsel matters in civil litigation.

Posted by Howard Wasserman on August 17, 2016 at 04:43 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Monday, July 25, 2016

JOTWELL: Campos on aggregating administrative action

The new Courts Law essay comes from Sergio Campos (Miami), reviewing a recent report of the Administrative Conference of the United States on using aggregate adjudication in administrative proceedings.

Posted by Howard Wasserman on July 25, 2016 at 12:24 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Thursday, June 30, 2016

JOTWELL: Malveaux on Marcus on public interest class actions

The new Courts Law essay comes from Suzette Malveaux (Catholic), reviewing David Marcus, The Public Interest Class Action (Geo. L.J.), which considers the special role of the public-interest, equitable-relief class action and how to shield it from the Court's recent narrowing decisions.

Posted by Howard Wasserman on June 30, 2016 at 02:11 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Wednesday, June 01, 2016

JOTWELL: Wasserman on Lain on The Irrepressible Myth of SCOTUS

I have the new Courts Law essay, titled The Irrepressible Myth of SCOTUS, reviewing Corinna Lain (Richmond), Three Supreme Court "Failures" and a Story of Supreme Court Success (Vand. L. Rev.). Lain's article is part of a symposium on Erwin Chemerinsky's The Case Against the Supreme Court.

And I just could not resist the title.

Posted by Howard Wasserman on June 1, 2016 at 12:33 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (1)

Wednesday, May 18, 2016

JOTWELL: Steinman on Pidot on tie votes

The new Courts Law essay comes from Adam Steinman (Alabama), reviewing Justin Pidot, Tie Votes in the Supreme Court (forthcoming in Minn.L. Rev.), a timely study of the history and effects of evenly divided Courts.

Posted by Howard Wasserman on May 18, 2016 at 10:17 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Monday, May 02, 2016

JOTWELL: Walsh on Blackman and Wasserman on marriage equality

The new Courts Law essay comes from Kevin Walsh (Richmond), reviewing Josh Blackman and my The Process of Marriage Equality (Hastings Const. L.Q.), which explores some of the procedural issues underlying marriage-equality litigation leading to and after Obergefell. And which appears to be something that is not going away.

Posted by Howard Wasserman on May 2, 2016 at 11:31 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (3)

Thursday, April 14, 2016

JOTWELL: Lahav on Prescott & Spier on Settlement

The new Courts Law essay comes from Alexandra Lahav (UConn) reviewing J.J. Prescott and Kathryn Spier's A Comprehensive Theory of Settlement (forthcoming N.Y.U. L. Rev.), which offers a broad understanding of settlement within civil litigation.

Posted by Howard Wasserman on April 14, 2016 at 12:01 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Friday, April 01, 2016

Litigant Autonomy After Scalia--and Thanks!

           In two previous posts, I reviewed new GMU Law namesake Justice Scalia’s approach to litigant autonomy—or at least, what I think his writings and cases suggest about that approach. Briefly, Scalia seemed to think litigant claim-control rights are substantive entitlements conferred by the law that creates in personam-style rights of action. I also criticized this view.

            One response is, “who cares” whether or not claim-control entitlements are conferred by the law that creates rights of action. Due process requires affording litigants protection for their claim-control interests. So, even if claim control entitlements don't vest through the law that creates a right of action, protection for claim-control flows from basic due process guarantees.

            My interest in how we derive autonomy rights stems from the fact I’m pretty much convinced by Sergio Campos’s thin account of the protection that ought to be afforded litigant autonomy as a matter of due process. If you buy Sergio’s due process argument, as I tend to do, and are a skeptic about the claim that autonomy is a positively conferred substantive right, it means that there's more space for work theorizing why we protect litigant autonomy to the degree that we do.

            There’s already interesting work out there pursuing that project. I highly recommend Ryan Williams' piece on litigant autonomy, Due Process, Class Action Opt Outs, and the Right Not to Sue, available here. He makes an important move by reframing opt out as a protection afforded claim-owners’ interests in controlling whether to assert a claim in the first place.

            In this paper, I rotate our view of litigant autonomy in a slightly different direction. The power to control a claim is not just the power to control whether to assert it—but where to assert it. It’s the power to put legal issues and remedial interests on a court’s dispute resolution agenda.  

            In the article, I make two claims about agenda-setting power conferred by claim-control—the first, which I will quickly summarize below the line for those who might be interested, is that the shift opens the door to appreciating that litigant autonomy actually does some important work in our system of judicial federalism.

            Although federal-state jurisdictional concurrency is characterized in a number of different ways, I take the conventional view: concurrency uses judicial competition to break down or check concentration of the business of dispute resolution in the federal system.

            Concurrency does this in part through what might be called agenda-setting rules—rules that specify who gets to pick between competing forums. Subject to some exceptions, our system generally employs a plaintiffs-pick-the-forum rule, reflected in, say, the well-pleaded complaint rule and voluntary/involuntary rule in diversity jurisdiction. Together, both empower plaintiffs to control which courts, state or federal, get to decide their case by exploiting aspects of claim-control--their control the theory of the case and the party structure.

            Scholars puzzle over the plaintiff-picks-the-forum rule. Considered in isolation, it plausibly furthers the anti-concentration goal of concurrency-- largely because plaintiffs have historically tended, for a variety of reasons, to prefer state over federal court.

            But, the plaintiff-picks rule really gains its force as a check on federal consolidation when it is layered on top of the principle that individual plaintiffs control their own claims—or in other words, when plaintiff-picks is hitched to a regime of litigant autonomy.   Litigant autonomy decentralizes the power to set the judicial agenda among a network of claim owners. Because litigants, in turn, naturally tend to have different forum preferences, that decentralization tends to fragment litigation across federal and state forums.

            Not perfectly, of course. And not evenly. But it does so nonetheless. That’s, indeed, exactly what we see when we take the class device away, as we have, for the most part, in mass torts. The federal class action consolidates remedial interests in federal court in part because it overrides class members’ autonomy and with it their exploit the theory of the case and party structure to control where their claims end up. Take the class action away, give class members control over their own claims, and some chunks of mass litigation inevitably radiate out of federal courts reach into state court as litigants exploit their claim-control to park there claims there. True before CAFA. True after.

            This fact, I argue, points out the plausibility of treating the traditional claim-control entitlement as traditional component of the system of concurrency—one that furthers that system’s anti-concentration goals.

            That’s my first claim—litigant autonomy does some work in our system of judicial federalism. My second claim is that appreciating litigant autonomy’s role in the system of concurrency has some interesting formal implications for federal class action doctrine—one that allows us to draw on intertwined separation of powers and federalism principles to make a case for narrow constructions of Rule 23. (The argument also reinforces the claim made by others that the Court ought to be deferential to the rulemaking bureaucracy—treating it, effectively, as a stand-in for Congress or, put another way, as a system of internal separation of powers--a point I’m exploring in a current working paper).

            My argument, incidentally, echoes older, and lost, approach to litigant autonomy that appears in mid-century cases (see the oft-neglected concluding part of State Farm Fire & Casualty v. Tashire, where the Court construes statutory interpleader's application to mass torts narrowly in order to protect litigants’ “substantial right” to choose a state forum, for example). Rather than summarize this second claim, I’ll let you read the article yourself, if you are interested.

            Thanks to Howard and Prawfs for the invite to blog over the last month!

Posted by Mark Moller on April 1, 2016 at 01:48 PM in Article Spotlight, Civil Procedure | Permalink | Comments (0)

Wednesday, March 30, 2016

JOTWELL: Thomas on Coleman on efficiency

The new Courts Law essay comes from Suja Thomas (Illinois), reviewing Brooke Coleman's The Efficiency Norm (B.C. L. Rev.), which explores the way the concept of efficiency has been defined and applied in civil litigation.

Posted by Howard Wasserman on March 30, 2016 at 04:05 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)