May 20, 2011
Commentary on AT&T Mobility v. Concepcion
We covered earlier the Supreme Court’s decision in AT&T Mobility v. Concepcion. Splitting 5-4, the Court held that the Federal Arbitration Act prevented the consumers from relying on state-law unconscionability principles in challenging a contractual waiver of the right to arbitrate disputes on a classwide basis. There’s been a lot of commentary on the case in the ensuing weeks. Here are some links:
Nan Aron, AT&T Mobility v. Concepcion: The Corporate Court Does it Again, at the Huffington Post.
Aaron Bruhl (Houston), AT&T’s Long Game on Unconscionability, at PrawfsBlawg.
Aaron Bruhl (Houston), AT&T v. Concepcion and Adherence to Minority Views, at PrawfsBlawg.
Erwin Chemerinsky (UC Irvine), Supreme Court: Class (action) dismissed, Los Angeles Times Op-Ed.
Lawrence Cunningham (George Washington), SCOTUS AT&T Opinion Par for Rhetorical Course, at Concurring Opinions.
Michael Dorf (Cornell), Arbitration Decision Suggests SCOTUS Majority Are Pro-Business More Than Jurisprudential Conservatives, at Dorf on Law.
Ashby Jones, After AT&T Ruling, Should We Say Goodbye to Consumer Class Actions?, at the Wall Street Journal Law Blog.
Nathan Koppel, Will Federal Consumer Bureau Ride to the Rescue of Class Actions?, at the Wall Street Journal Law Blog.
Ken Klukowski, Trial lawyers lose to arbitration law in Supreme Court, Washington Examiner Op-Ed.
New York Times Editorial, Gutting Class Action
Opposing Views of Court's Ruling on Class Actions, Letters to the Editor, New York Times, from Arthur Miller (NYU) and Andrew Pincus.
Larry Ribstein (Illinois), Arbitration, preemption, and regulatory coordination, at Truth on the Market.
Lawrence Schonbrun, Supreme Court Ruling Is Not Bad News For Consumers, the Class Action System Is the Real Culprit, at the Huffington Post
May 19, 2011
Decision of Interest: Ninth Circuit Finds Personal Jurisdiction Over DaimlerChrysler in U.S. Lawsuit Arising From Argentina's "Dirty War"
Yesterday the U.S. Court of Appeals for the Ninth Circuit issued its decision in Bauman v. Daimler Chrysler Corp., No. 07-15386, ___ F.3d ___, 2011 WL 1879210. The unanimous opinion, authored by Judge Stephen Reinhardt, rejected the argument that DaimlerChrysler was not subject to personal jurisdiction in California. It begins:
Plaintiffs-Appellants (the “plaintiffs”), twenty-two Argentinian residents, bring suit against DaimlerChrysler Aktiengesellschaft (DCAG) alleging that one of DCAG’s subsidiaries, Mercedes-Benz Argentina (MBA) collaborated with state security forces to kidnap, detain, torture, and kill the plaintiffs and/or their relatives during Argentina’s “Dirty War.” Some of the plaintiffs are themselves former employees of MBA and the victims of the kidnapping, detention, and torture, while others are close relatives of MBA workers who were “disappeared” and are presumed to have been murdered. The only question before us is whether the district court had personal jurisdiction over DCAG. The district court granted DCAG’s motion to dismiss the case for lack of such jurisdiction. We conclude, however, that DCAG was subject to personal jurisdiction in California through the contacts of its subsidiary Mercedes-Benz USA (MBUSA). We hold that MBUSA was DCAG’s agent, at least for personal jurisdictional purposes, and that exercise of personal jurisdiction was reasonable under the circumstances of this case. [footnotes omitted]
The Ninth Circuit had issued an opinion in the case two years ago (from which Judge Reinhardt dissented), 579 F.3d 1088, but that opinion was vacated following the plaintiffs’ petition for rehearing. 603 F.3d 1141.
May 17, 2011
Now Available on the Courts Law Section of Jotwell
Last month we covered the launch of the new Courts Law section of Jotwell. The latest contribution is now up: Congress, the Supreme Court, and Constitutional Interpretation, by Professor Lee Epstein (Northwestern).
Professor Epstein reviews Congress, the Supreme Court, and Judicial Review: Testing a Constitutional Separation of Powers Model, by Jeffrey A. Segal, Chad Westerland & Stefanie A. Lindquist. It was recently published in the American Journal of Political Science [55 Am. J. of Poli. Sci. 89 (2011)].
May 16, 2011
Campos on Mass Torts and Due Process
Sergio Campos (University of Miami) has posted Mass Torts and Due Process to SSRN.
Almost all courts and scholars disfavor the use of class actions in mass tort litigation, primarily because class actions infringe on each plaintiff's control, or autonomy, over the tort claim. The Supreme Court has stressed the importance of litigant autonomy in other contexts, most recently in decisions involving the Rules Enabling Act, preclusion, and arbitration. Indeed, this term the Court will decide four cases involving class actions that will likely reaffirm the importance of protecting a plaintiff's autonomy over the claim. In all of these contexts the Court, and most scholars, have understood protecting litigant autonomy as a requirement of procedural due process.
In this article I argue that protecting litigant autonomy in the mass tort context is mistaken, and, in the process, challenge basic notions of procedural due process. Relying on recent property theory, I first show that protecting litigant autonomy in mass tort litigation causes collective action problems that undermine the deterrent effect of the litigation. Thus, protecting litigant autonomy leads to more mass torts. Counterintuitively, this tragedy can be avoided by taking away each plaintiff's autonomy over the claim, such as through a mandatory class action.
I then use the self-defeating nature of litigant autonomy in the mass tort context to reexamine the law of procedural due process. I argue that an interest in deterrence, understood as an individual interest in avoiding the tort altogether, should be included in the due process analysis. I also argue for a more impartial method to balance competing interests. I conclude that the law of procedural due process should permit mandatory collective procedures in mass tort and similar contexts. I further suggest that the law of procedural due process should focus less on procedural rights such as litigant autonomy, a "day in court," and even the opportunity to be heard, and focus more on often ignored aspects of procedural design.