Tuesday, May 8, 2012
Prof. Brandon Garrett (Virginia) has posted on SSRN his article, Aggregation and Constitutional Rights, which is forthcoming in the Notre Dame Law Review. Here’s the abstract:
Constitutional rights can impact large groups, yet most plaintiffs in civil rights cases bring individual claims. Critics of the Supreme Court’s decisions regarding class actions, such as the decision last Term in Dukes v. Wal-Mart, have argued that the Court is generally limiting the ability of plaintiffs to bring class actions through procedural limitations, such as the Wal-Mart Court’s heightening of the commonality requirement. I trace the problem deeper into the substance of constitutional doctrine. The Court has defined certain constitutional rights to require highly individualized inquiries. For example, Fourth Amendment excessive force claims, the bread and butter of constitutional tort litigation, often require an individual analysis of the reasonableness of the search. As a result, courts may deny class certification citing to a lack of common issues. Other constitutional rights - ranging from due process rights, criminal procedure rights, equal protection claims, and takings claims - similarly resist aggregate treatment. The Wal-Mart ruling - although procedural - will have a disproportionate impact on particular substantive areas of the law, even within civil rights litigation. I suggest that this confluence of procedural rulings and change in constitutional doctrine was not anticipated and nor is it desirable. I explore changes to sub-constitutional remedial doctrine and statutes that could rekindle aggregate constitutional litigation. Aggregation would benefit more than just the plaintiffs who bring these cases. If constitutional litigation becomes a purely solitary affair, sporadic cases may have an outsized impact, but in an ad hoc way that provides poor notice to government officials. Aggregation can improve clarity, legitimacy, participation, and representation. Bigger lawsuits may sometimes be better - particularly when developing constitutional values.
(Hat Tip: Larry Solum)
Monday, May 7, 2012
Now on SSRN is my article, The Lay of the Land: Examining the Three Opinions in J. McIntyre Machinery, Ltd. v. Nicastro, which was part of a recent symposium on the Supreme Court’s two personal jurisdiction decisions from last Term. Here’s the abstract:
It was a long time coming. The Supreme Court's decisions last Term in J. McIntyre Machinery, Ltd. v. Nicastro and Goodyear Dunlop Tires Operations, S.A. v. Brown ended a two-decade high-court hiatus from the subject of personal jurisdiction. In McIntyre, the more controversial of the two, the Court concludes that New Jersey state courts lacked jurisdiction over a British manufacturer in a suit by a New Jersey plaintiff who was injured in New Jersey by a machine purchased by his New Jersey employer. McIntyre lacks a majority opinion, however. Instead we have a four-Justice plurality authored by Justice Kennedy, a three-Justice dissent authored by Justice Ginsburg, and a scale-tipping concurrence written by Justice Breyer and joined by Justice Alito.
This article for the South Carolina Law Review's symposium on McIntyre and Goodyear examines the three McIntyre opinions. It argues that McIntyre should not be read to impose significant new restraints on jurisdiction. Although there are aspects of Justice Kennedy's plurality that suggest a more restrictive approach, Justice Breyer's concurrence explicitly rejects Justice Kennedy's reasoning. Justice Breyer does agree that jurisdiction was not proper in McIntyre, but that conclusion is premised on a very narrow understanding of the factual record. Correctly understood, Justice Breyer's approach would allow jurisdiction in a similar case -- even one where only a single sale is ultimately made to an in-state purchaser -- provided the record is slightly more developed on the presence of potential customers in the forum state. In terms of the overarching legal principles, Justice Breyer's concurrence has more in common with Justice Ginsburg's dissent than Justice Kennedy's plurality.
Thanks again to the folks at South Carolina, who did an excellent job with the symposium. It was a pleasure to be a part of it.