Friday, February 14, 2020
Suja Thomas has posted on SSRN a draft of her article, The Customer Caste: Lawful Discrimination by Public Businesses. Here’s the abstract:
It is legal to follow and watch people in retail stores based on their race, give inferior service to restaurant customers based on their race, and place patrons in certain hotel rooms because of their race. Congress enacted Title II of the Civil Rights Act of 1964 to protect black and other people of color from discrimination and segregation in public accommodations—places where people receive goods, food, services, and lodging. Scholarship has not analyzed how well Title II and Section 1981 of the Civil Rights Act of 1866 have functioned in this arena. An examination of this caselaw shows that courts find numerous discriminatory and segregatory actions by places of public accommodation legal. An assessment of the legislative history and text of the laws, in addition to the interpretation of similar laws demonstrate that the judiciary has incorrectly constrained the law by, among other actions, adopting the heavily-criticized employment discrimination caselaw and requiring a common law-like contractual relationship. Jim Crow laws ceased to exist in the 1960s, but these interpretations have created “the customer caste,” whereby people of color are subject to legal, daily discrimination in retail stores, restaurants, gas stations, hotels, banks, and airplanes.
Wednesday, February 12, 2020
Jonathan Nash and Michael Collins have posted on SSRN a draft of their article, The Certificate of Division and the Early Supreme Court. Here’s the abstract:
The history and development of Supreme Court review over state courts in the early Republic is well known. The equally important history and development of Supreme Court review of federal trial courts under the “Certificate of Division” is not. This Article addresses this largely forgotten yet critically significant feature of the early Court’s appellate power. During much of the nineteenth century, the main federal trial courts were generally staffed with two judges—a Supreme Court Justice riding circuit and a resident district judge. As a result, there were often tie votes on questions of law. Congress’s remedy was the certificate of division, which called for mandatory interlocutory Supreme Court review when the judges were divided. This unusual and understudied appellate mechanism proved critical to the development of law and the role of the Court during the Chief Justiceships of Marshall and Taney, and it implicated procedural issues that are still relevant today.
As this Article will show, many of the early Court’s most important cases came to it via certificate of division. And certification produced almost as many Supreme Court decisions as did the Court’s direct review of the state courts, the more widely-studied practice. In addition, because review was obligatory when there was division, disagreement between the judges was sometimes feigned, in order to steer certain legal questions to the Court that the judges wished it to hear, many of which might otherwise have escaped review. In this regard, we include a heretofore unavailable dataset that collects all cases—civil and criminal—that reached the Court via certification. And we undertake an empirical analysis of the dataset to ascertain, among other things, which Justices used (and sometimes abused) the practice. This Article will also show how certification by division allowed for practices that scholars tend to assume arose much later. For example, it provided an early opportunity for interlocutory appeals from lower federal courts, and it provided Supreme Court Justices with a form of discretionary control over the Court’s docket (simply by disagreeing with the district judge), long before discretionary review became the norm. Finally, certification was important as one of a variety of possible approaches that judicial systems use to break ties—here, by allowing an appeal as of right to a higher court.
Friday, February 7, 2020
Wednesday, January 29, 2020
Llezlie Green has published Wage Theft in Lawless Courts, 107 Cal. L. Rev. 1303 (2019). Here’s the abstract:
Low-wage workers experience wage theft—that is, employers’ failure to pay earned wages—at alarmingly high rates. Indeed, the number of wage and hour cases filed in federal and state courts and administrative agencies steadily increases every year. While much of the scholarly assessment of wage and hour litigation focuses on large collective and class actions involving hundreds or thousands of workers and millions of dollars in lost wages, the experiences of individual workers with small claims have received little attention. Furthermore, scholarly consideration of the justice gap in lower courts, more generally, has often focused on debt collection cases in which the individual denied justice is the defendant, not the plaintiff.
This article fills a significant gap in the literature by considering the experiences of individual low-wage workers who pursue their claims in the lower courts. In doing so, it identifies the difference between the law as written and the law as experienced by low-wage workers seeking to vindicate their substantive legal rights. After considering the challenges to adjudicating wage and hour cases in small claims courts, it argues that procedural informality and frequent absence of critical inquiry into the substantive legal issues create significant hurdles to low-wage workers’ ability to prevail on their claims. Indeed, despite the various protections provided by both federal and state wage and hour laws, courts adjudicating these claims often apply a breach of contract analysis that disadvantages vulnerable workers. This return to what I term a pre-New Deal, Lochnerian approach to wage and hour disputes runs afoul of Congress and state governments’ efforts to regulate the workplace and, particularly, to protect vulnerable low-wage workers.
This article argues that the challenge of injecting legal standards into small claims court requires the creative use of narrative and case theory to prevail in wage and hour claims. It also considers potential procedural changes, such as the introduction of specific pleadings and forms for wage and hour claims and state court judge trainings that would better enable pro se parties to assert their federal and state substantive wage and hour rights in small claims courts.
Tuesday, January 21, 2020
Now on the Courts Law section of JOTWELL is Roger Michalski’s essay, Attention Supplicants. Roger reviews Ryan Copus’s article, Statistical Precedent: Allocating Judicial Attention, which is forthcoming in the Vanderbilt Law Review.
Monday, January 13, 2020
Now on the Courts Law section of JOTWELL is Suzette Malveaux’s essay, Procedural Law, the Supreme Court, and the Erosion of Private Rights Enforcement. Suzette reviews Steve Burbank & Sean Farhang’s article, Rights and Retrenchment in the Trump Era, 87 Fordham L. Rev. 37 (2018).
Wednesday, December 11, 2019
Today on the Courts Law section of JOTWELL is Jim Pfander’s essay, Due Process and National Injunctions. Jim reviews Mila Sohoni’s recent article, The Lost History of the “Universal” Injunction, which is forthcoming in the Harvard Law Review.
Wednesday, December 4, 2019
The Pound Civil Justice Institute has announced the winners of its 2020 Civil Justice Scholarship Award. From the announcement:
The Pound Civil Justice Institute has chosen the recipients of the Institute’s 2020 Civil Justice Scholarship Award: Professor Zachary D. Clopton (Northwestern) and Professor Adam N. Steinman (Alabama).
Professor Clopton, of Northwestern Pritzker School of Law, is honored for his article Procedural Retrenchment and the States, 106 Calif. L. Rev 411 (2018), in which he evaluated possible state-court and state-enforcement responses to the Roberts Court’s recent procedural decisions, and suggested further interventions by state courts and public enforcers that could offset the recent regression in access to justice.
Professor Steinman, of The University of Alabama School of Law, is honored for his article Access to Justice, Rationality, and Personal Jurisdiction, 71 Vand. L. Rev. 1401 (2018), in which he analyzed the United States Supreme Court’s recent decisions on personal jurisdiction in civil litigation, examined the situations where personal jurisdiction doctrine is most likely to threaten access to justice and the enforcement of substantive law, and proposed ways to work within the Court’s case law to preserve meaningful access and enforcement.
High Distinction for an Article: The Institute also recognized an article for high distinction among the nominations received: The Shifting Sands of Employment Discrimination: From Unjustified Impact to Disparate Treatment in Pregnancy and Pay, 105 Geo. L. J. 559 (2017), by Professor Deborah Brake, of the University of Pittsburgh School of Law. In an interesting and well-written article addressing one of the most frustrating aspects of employment discrimination law, pay discrimination, Brake argues for using recent developments in the law of pregnancy discrimination to shift the understanding of discriminatory intent in the jurisprudence of equal pay.”
On a personal note, I’m very grateful to be chosen for this award, and to be recognized alongside Zach and Deborah as well as last year’s honorees Alexandra Lahav, Suja Thomas, and Myriam Gilles. Congrats to all, and sincere thanks to the Pound Civil Justice Institute!
Wednesday, November 27, 2019
Today on the Courts Law section of JOTWELL is Ryan Azad’s essay, Decision-Making in the Dark. Ryan reviews Merritt McAlister’s recent article, “Downright Indifference”: Examining Unpublished Decisions in the Federal Courts of Appeals, which is forthcoming in the Michigan Law Review.
Monday, November 18, 2019
Pound Civil Justice Institute/Lewis & Clark Law School Symposium: "Class Actions, Mass Torts, and MDLs: The Next 50 Years"
Wednesday, November 13, 2019
Now on the Courts Law section of JOTWELL is Jay Tidmarsh’s essay, The Negotiation Class Action. Jay reviews a recent paper by Francis McGovern & Bill Rubenstein, The Negotiating Class: A Cooperative Approach to Class Actions Involving Large Stakeholders.
Monday, November 4, 2019
Mullenix on Choi, Erickson & Pritchard on Attorneys Fees in Securities Fraud Class Action "Mega-Settlements"
Now on the Courts Law section of JOTWELL is Linda Mullenix’s essay, Is Greed Good? Mega-Fees in Securities Fraud Class Action Mega-Settlements. Linda reviews a recent paper by Stephen Choi, Jessica Erickson, and Adam Pritchard, Working Hard or Making Work? Plaintiffs’ Attorneys Fees in Securities Fraud Class Actions.
Thursday, October 17, 2019
Now on the Courts Law section of JOTWELL is Pam Bookman’s essay, New Courts, New Perspectives. Pam reviews two recent articles: Matthew Erie, The New Legal Hubs: The Emergent Landscape of International Commercial Dispute Resolution, Va. J. Int’l L. (forthcoming 2020); and Will Moon, Delaware’s New Competition, Nw. U. L. Rev. (forthcoming 2020).
Friday, October 11, 2019
Sergio Campos has published The Uncertain Path of Class Action Law, 40 Cardozo L. Rev. 2223 (2019). Here’s the abstract:
For the past ten terms the Supreme Court has increased its focus on the law of class actions. In doing so, the Court has revised the law to better accord with a view of the class action as an exception to an idealized picture of litigation. This “exceptional” view of the class action has had a profound impact not only on class action law, but on procedural and substantive law in general. However, in the October 2015 term the Court decided three class action cases that support an alternative, “functional” view of the class action, one that does not view the class action as exceptional, but as one of many equally permissible tools to serve the objectives of substantive law. This alternative view has the potential to have a similarly significant impact on the law, but it is not certain whether the Court will further develop this alternative, especially given its most recent class action decisions. This Article discusses the development of the “exceptional” view of the class action, the awakening of a “functional” alternative view, and the uncertain path ahead.
Friday, October 4, 2019
Ann Juliano has published The Games We Play, 63 St. Louis U. L.J. 453 (2019). The article begins:
We Civil Procedure professors like to shake our heads and grimly note the unique difficulties we face in teaching Procedure to first year students. We use phrases like “alien and incomprehensible,” “abstract and alienating,” and “not the most spellbinding course in the first-year curriculum.” Students approach the “pamphlet” of the Federal Rules of Civil Procedure (“the Rules”) with trepidation and a weary sigh. To fight against this predisposition and to demonstrate to students that they have read, interpreted, and employed “rules” for many years, I now begin the semester by playing board games. By spending some time in the first class with Monopoly, Jenga, and several other games, I hope to accomplish many of the objectives suggested in the pedagogical research. More specifically, by playing card games or Apples to Apples, I am able to raise important points about rules and how we interpret them while setting a less formal, collegial tone for the semester.
Tuesday, October 1, 2019
The Hastings Law Journal has published an issue dedicated to Geoff Hazard, featuring articles and tributes by David Faigman, Ben Barton & Deborah Rhode, Antonio Gidi, Neil Andrews, Loïc Cadiet, Ed Cooper, Judge William Fletcher, William Hodes, Peter Jarvis, Mary Kay Kane, Susan Koniak, Evan Lee, John Leubsdorf, Rick Marcus, Koichi Miki, Judge Anthony Scirica, Cathie Struve, Michele Taruffo, and Mike Traynor.
Friday, September 27, 2019
Mila Sohoni has posted on SSRN a draft of her article, The Lost History of the 'Universal' Injunction, which is forthcoming in the Harvard Law Review. Here’s the abstract:
The issuance of injunctions that reach beyond just the plaintiffs has recently become the subject of a mounting wave of censorious commentary, including by members of Congress, a Supreme Court justice, the Solicitor General, the Attorney General, and the President. Critics of these “universal” injunctions have claimed that such injunctions are a recent invention and that they exceed the power conferred by Article III to decide cases “in … equity.” This Article rebuts the proposition that the universal injunction is a recent invention and that it violates Article III or the traditional limits of equity as practiced by the federal courts. As far back as 1913, the Supreme Court itself enjoined federal officers from enforcing a federal statute not just against the plaintiff, but against anyone, until the Court had decided the case. If the Supreme Court can issue a universal injunction against enforcement of a federal law, then — as an Article III matter — so can a lower federal court. Moreover, lower federal courts have been issuing injunctions that reach beyond the plaintiffs as to state laws in cases that date back more than a century, and the Supreme Court has repeatedly approved of these injunctions. If Article III allows such injunctions as to state laws, it also allows such injunctions as to federal laws. Mapping these and other pieces of the lost history of the universal injunction, this Article demonstrates that the Article III objection to the universal injunction should be retired, and that the unfolding efforts to outright strip the federal courts of the tool of the universal injunction — whether by statutory fiat or by a judicial re-definition of Article III — should halt.
Wednesday, September 25, 2019
John Coyle has published Interpreting Forum Selection Clauses, 104 Iowa L. Rev. 1791 (2019). Here’s the abstract:
Over the past half century, courts in the United States have developed canons of construction that they use exclusively to construe forum selection clauses. These canons play an important role in determining the meaning of these clauses and, by extension, whether litigation arising out of a particular contract must proceed in a given place. To date, however, these canons have attracted surprisingly little attention in the academic literature.
This Article aspires to fill that gap. It provides the first comprehensive taxonomy of the canons that U.S. courts use to construe forum selection clauses. These interpretive rules fall into four groups: (1) the canons relating to exclusivity, (2) the canons relating to scope, (3) the canons relating to non-signatories, and (4) the canons relating to federal court. When a judge is presented with ambiguous language in a forum selection clause, she will frequently turn to one of these interpretive rules of thumb to resolve the ambiguity.
In principle, each of these canons produces outcomes that are broadly consistent with the preferences of most contracting parties. In practice, this is not always the case. Drawing upon interviews and e-mail exchanges with 86 attorneys, the Article shows that several of these canons produce outcomes that are arguably inconsistent with majoritarian preferences. In such cases, the Article argues that these canons should be cast aside. In their place, the courts should adopt new interpretive default rules that more closely track the preferences of most contracting parties.
The Article’s final contribution to the literature relates to contract drafting. If a forum selection clause is unambiguous, there will be no need for the courts to invoke the canons. The Article concludes by urging contracting parties incorporate certain words and phrases into their contracts ex ante so as to avoid incurring the costs associated with litigating their meaning ex post.
Monday, September 23, 2019
Wednesday, September 18, 2019
Kathleen Noonan, Jonathan Lipson & Bill Simon have published Reforming Institutions: The Judicial Function in Bankruptcy and Public Law Litigation, 94 Ind. L.J. 545 (2019). Here’s the abstract:
Public law litigation (PLL) is among the most important and controversial types of dispute that courts face. These civil class actions seek to reform public agencies such as police departments, prison systems, and child welfare agencies that have failed to meet basic statutory or constitutional obligations. They are controversial because critics assume that judicial intervention is categorically undemocratic or beyond judicial expertise.
This Article reveals flaws in these criticisms by comparing the judicial function in PLL to that in corporate bankruptcy, where the value and legitimacy of judicial intervention are better understood and more accepted. Our comparison shows that judicial intervention in both spheres responds to coordination problems that make individual stakeholder action ineffective, and it explains how courts in both spheres can require and channel major organizational change without administering the organizations themselves or inefficiently constricting the discretion of managers. The comparison takes on greater urgency in light of the Trump administration’s vow to “deconstruct the administrative state,” a promise which, if kept, will likely increase demand for PLL.