Saving the Public Interest Class Action by Unpacking Theory and Doctrinal Functionality

David Marcus, The Public Interest Class Action, 104 Geo. L.J. 777 (2016).

Scholars, lawyers, and litigants struggle to understand the class action landscape that has evolved over the past five decades and has sharply contracted more recently. Seminal rulings such as Wal-Mart v. Dukes and its progeny in the lower courts have sown division and analytical confusion over the meaning and normative value of this obstructionist shift in jurisprudence. In The Public Interest Class Action, David Marcus dives into this morass, examining one slice of this jurisprudential retrenchment and its varied implications—class action procedure in public interest litigation, litigation brought against government officials and agencies for injunctive relief.

Marcus’s focus on structural-reform cases against public actors illustrates how most of the policy concerns animating class certification retrenchment are unjustified, misplaced, and dangerous to enforcement of constitutional rights. Much of the academic critique has centered around the role of monetary interests in aggregation—a distortion and distraction for understanding the public interest class action. The casualties of this misalignment are vulnerable populations such as foster children, prisoners, and students with disabilities, who have historically successfully sought structural remedies through aggregate litigation. Marcus speaks directly to judges chewing on how to approach class-certification motions and counsels them to manage structural reform litigation, not destroy it. Marcus puts retrenchment advocates to their proof, concluding that they have failed to prove how public interest class actions pose policy problems that can be rectified by Rule 23 obstructionism. Continue reading "Saving the Public Interest Class Action by Unpacking Theory and Doctrinal Functionality"

 
 

Data Mistakes and Data Justice

Wayne A. Logan & Andrew Guthrie Ferguson, Policing Criminal Justice Data 101 Minn. L. Rev. (forthcoming 2016).

In criminal justice circles, “big data” is the new buzzword: police departments are experimenting with the application of computer algorithms to vast amounts of digitized data to predict the future geographic location of crimes, to identify those people likely to become involved in gun violence, and to assess future criminality for the purpose of setting bond amounts and determining sentences. It turns out, though, that algorithms have problems. They can reflect the biases and choices of the humans who create them. They can also be plain wrong.

Besides algorithms, there is a more basic problem. The data itself can contain countless mistakes, inaccuracies, and discrepancies. While the wrong address, the invalid warrant, and the mistakenly recorded conviction don’t sound like particularly new problems (they aren’t), they represent an urgent but overlooked issue in our information-dependent world. This data determines how the government distinguishes between the dangerous and the low-risk, those who should be arrested and those who should be left alone. However, as Wayne Logan and Andrew Ferguson point out in their insightful and important article, Policing Criminal Justice Data, this “small data” is too often dead wrong. To make matters worse, there is little incentive for government agencies—at any level—to care. Their discussion is a must-read for anyone interested in the increasingly important role of information distribution and control in criminal justice. Continue reading "Data Mistakes and Data Justice"

 
 

Star Wars, Science Fiction and the Constitution

Cass R. Sunstein, The World According to Star Wars (2016).

Cass Sunstein is one of America’s leading legal scholars. Both his work generally and his book about Star Wars specifically have attracted enormous attention from both academics and the general public. But one theme of his new book, The World According to Star Wars, highlights an area that is often neglected: the depiction of constitutional issues in science fiction and fantasy.

Both legal scholars and other commentators on law and public policy would do well to pay more attention to this subject. Far more people watch science fiction movies and read science fiction books than pay attention to serious nonfiction commentary on political and constitutional issues. Whether we like it or not, these products may well have an impact on public attitudes, a possibility supported by some social science research.1 They also often reflect the concerns of their time. Continue reading "Star Wars, Science Fiction and the Constitution"

 
 

Thinking About Monitoring

Veronica Root, Modern-Day Monitorships, 33 Yale J. on Reg. 109 (forthcoming 2016), available at SSRN.

The study of organizational compliance is now proliferating in American law schools. Over the past decade, new courses, new programs, and new scholarship have focused increasing attention on this area. In recognition of the importance of organizational compliance as a free-standing field of inquiry, the American Law Institute has launched the drafting of Principles of the Law, Compliance, Enforcement, and Risk Management for Corporations, Nonprofits, and Other Organizations. This project – and the work it inspires – should advance our understanding of a framework for thinking about organizational compliance. Veronica Root’s work on monitorships, including her most recent piece on Modern-Day Monitorships, is a meaningful contribution to one piece of that framework.

Much of the existing work on organizational compliance focuses on “gatekeepers,” which reassure the public that a corporation is complying with its obligations. Professor Root has focused her scholarship on the enforcement side, helping us to understand the special role of “monitors,” which enter the scene after a compliance failure is manifest.1 The role of monitors is to investigate wrongdoing and make recommendations for future compliance. In her most recent article, Root describes “modern-day monitorships” and argues for a more nuanced understanding of these important enforcement institutions. Continue reading "Thinking About Monitoring"

 
 

Saving Auer

Cass R. Sunstein and Adrian Vermeule, The Unbearable Rightness of Auer, U. Chi. L. Rev. (forthcoming 2016), available at SSRN.

In 1945 the Supreme Court decided the case of Bowles v. Seminole Rock & Sand Co., in which it stated without citation to precedent or other explanation that, when the meaning of the words in an agency’s regulation are in doubt, “the administrative interpretation . . . becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.” Over the years, this language has been often quoted by the Supreme Court, including in 1997 by Justice Antonin Scalia in Auer v. Robbins. Subsequently, courts and commentators have usually referred to this doctrine as Auer deference, and until recently the doctrine generally occasioned little discussion in the courts except in some cases where there was a suggestion of a possible exception from the doctrine when the regulation in question was itself hopelessly vague. But recently, there has been a frontal attack on the Auer doctrine led by the late Justice Scalia and Justice Thomas and apparently viewed sympathetically by Justice Alito and the Chief Justice. Moreover, leaders in the House and Senate have introduced a bill essentially to overrule Auer.

Now come Professors Sunstein and Vermeule in The Unbearable Rightness of Auer to take up the cudgel in defense of Auer. Their article is the starting point for any further discussion of the Auer doctrine.  Continue reading "Saving Auer"

 
 

Making Sense of Mid-Term Modifications of At-Will Employment Contracts

Rachel Arnow-Richman, Modifying At-Will Employment Contracts, 57 B.C. L. Rev. (forthcoming 2016), available at SSRN.

I’m always pleasantly surprised when I stumble across a piece of scholarship that seeks to solve a doctrinal puzzle in the law. I’m even more pleasantly surprised when the puzzle in question is one that I’ve puzzled over myself. And I’m really pleasantly surprised when the author offers a convincing solution to the puzzle. Those are but three reasons why I like Rachel Arnow-Richman’s article Modifying At-Will Employment Contracts.

Arnow-Richman’s article explores the contractual enforceability of what she calls “mid-term modifications,” a set of non-negotiable contract terms offered by an employer after the start of an at-will employment relationship.  These mid-term modifications often involve new terms that are less favorable to an employee, such as covenants not-to-compete or reduced benefits. The situation presents the type of conflict of competing interests that makes employment law so fascinating. Employees, whose employment status is already tenuous under the at-will employment rule, obviously want to be able to rely on “the deal” as to the terms and conditions of their employment when they first started to work. For their part, employers may have a legitimate need for flexibility in responding to changed circumstances. The law is then asked to produce an equitable solution to the conflict when an employer seeks to alter the deal after the relationship has commenced. But as Arnow-Richman demonstrates, “the common law has developed neither a coherent legal framework for analyzing mid-term modifications, nor a cogent theoretical basis for understanding existing doctrine.” (P. 3.) Continue reading "Making Sense of Mid-Term Modifications of At-Will Employment Contracts"

 
 

Bystanders v. Bullies

Sarah L. Swan, Bystander Interventions, 2015 Wis. L. Rev. 975 (2015).

The Stanford rape case has given new prominence to the role of bystanders in sexual assault cases. Many have heralded the actions of the two Swedish graduate students who intervened to stop the sexual assault of an unconscious woman and forcibly detain her attacker until police arrived. However, in the world of tort law, attitudes towards bystanders and bystander intervention are ambivalent, at best.

To begin with, one of the most enduring tort doctrines is the no-duty-to-rescue rule. Its protection is so broad that it shields the most callous persons who refuse to provide assistance, even if they could easily prevent a serious injury to another at little risk to themselves. Bystanders, we are told, are under no legal obligation to act and are allowed to remain passive in the face of suffering and simply go about their own business. As an expression of fundamental values of personal autonomy and individualism, letting bystanders off the hook can appear natural and appropriate. Even the term “bystander” itself suggests lack of involvement and lack of interest. In Bystander Interventions, Sarah Swan cuts against this narrative, exploring the new world of bystander intervention strategies and making the case for reforming tort doctrine and other bodies of law to encourage “active” bystanders. Continue reading "Bystanders v. Bullies"

 
 

Do Something! Sins of Omission in Property Law

Property often seems like a force field, a socially protected clearing in which an owner can act (within specified bounds) or do nothing at all. On this account, property is institutionalized noninterference. Trouble arises, we are given to understand, only when someone—an owner, an outsider, or the government—does something that impinges on someone else’s entitlements. The pervasive language of exclusion and encroachment, of boundaries defended and breached, cultivates the perception that property law operates to constrain action, not to compel it.

Two recent articles challenge the idea that property law is, or should be, complacent about inactivity. Nadav Shoked’s piece, The Duty to Maintain, examines the affirmative obligations that law routinely places on owners and finds them to be normatively well-grounded. And in Passive Takings, Christopher Serkin suggests that there are circumstances in which government should be subject to takings liability for passivity as well as for action. Each of these pieces emphasizes the contingent and interdependent nature of property interests, and each highlights the weakness and ultimate incoherence of using a line between acts and omissions to determine the duties owed by and to owners. Continue reading "Do Something! Sins of Omission in Property Law"

 
 

Can Prosecutors Be Both Coach and Referee?

Eric Fish, Prosecutorial Constitutionalism, S. Cal. L. Rev. (forthcoming 2016), available at SSRN.

In his intriguing new article, Prosecutorial Constitutionalism, Eric Fish develops a theory about when prosecutors ought to act as public officials, interpreting the Constitution as a judge would do, and when they should serve as advocates seeking a conviction or the maximum punishment possible. He concludes that when the adversary system fails, prosecutors should assume the role of judges. They should act according to their own interpretation of the Constitution, as other public officials are expected to do.

When prosecutors are in full control of the criminal justice process, as in plea bargaining or charging, the adversary checks are absent, and prosecutors should interpret and apply the Constitution to protect defendants’ rights. Similarly, when judges under-enforce constitutional norms out of procedural or structural concerns like separation of powers, the prosecutor should serve as a guardian of defendants’ rights rather than their adversary. In other moments when the system is functioning as a proper check, prosecutors should be free to pursue convictions and high sentences with zeal. Continue reading "Can Prosecutors Be Both Coach and Referee?"

 
 

Justifying the Law-Equity Divide

Samuel Bray, The System of Equitable Remedies, 63 UCLA L. Rev. 530 (2016).

The division between law and equity has a long and important history in Anglo-American jurisprudence, and one whose effects continue to resonate in American courts to this day. Indeed, whenever I teach remedies, I tell my students that this is an area of law where history still matters—that if they want to understand the difference between legal and equitable remedies, and to know the types of remedies that their clients might be entitled to in a given case, they need to be at least somewhat familiar with the history of the contest between the English courts of law and the Court of Chancery, which was responsible for developing and administering the rules of equity. Why? Because it was the battle over jurisdictional turf that took place between these courts hundreds of years ago that gave rise to a rule (i.e., the irreparable injury rule) that still operates whenever judges are called upon to decide whether an aggrieved party is entitled to an equitable remedy. Specifically, the irreparable injury rule requires that an aggrieved party seeking an equitable remedy (e.g., specific performance of a contract) must show that there is no adequate legal remedy (e.g., money damages) to put it in the position it would have occupied had the wrongdoer not committed its wrong (e.g., breach of contract).

Apart from this history, however, one wonders whether the irreparable injury rule (specifically), or the division between legal and equitable remedies (more generally), can be justified along more functional lines. Many commentators believe that it cannot. Professor Douglas Laycock, for instance, in strong and colorful language, has argued that “[a] rule designed to preserve the jurisdictional boundaries between two courts that have long been merged should die unless it serves some modern purpose.”1 In fact, Laycock has even claimed that the rule is largely dead, being more honored in the breach than in the observance.2 But if this is true, one may ask (as my students sometimes do), why do professors still teach the irreparable injury rule, and why do courts still invoke it whenever a plaintiff seeks an equitable remedy? And, perhaps more importantly, since courts of law and equity have long been merged in most jurisdictions, what justification (outside of tradition) can there be for continuing to distinguish between legal and equitable remedies in such a manner? It is in providing an answer to these tough and persistent questions that Samuel Bray’s article, The System of Equitable Remedies, makes an important contribution to the field. Continue reading "Justifying the Law-Equity Divide"

 
 

Staying Power of Equity

Samuel L. Bray, The System of Equitable Remedies, 63 UCLA L. Rev. 530 (2016).

Let equity lure you with its sirens. Equity, first developed by the Court of Chancery, is vital to the law of remedies. It affects a range of rights, remedies, and defenses from public to private disputes. It cannot be forgotten, ignored, or fully merged. The trend, however, is to streamline equity. For example, Douglas Laycock has argued we should move beyond the law-equity divide, and Doug Rendleman has advocated fusion and functionalism for reasons that I separately have acknowledged: equity generates friction and confusion, especially regarding restitution and unjust enrichment. Sam Bray’s The System of Equitable Remedies refutes this movement. Bray instead argues that equity remains distinct from law and comprises its own system that is pervasive, rational, and useful.

I agree: equity is alive and well in America. It is not simply federal and state constitutional rights to jury trials keeping the divide relevant. Federal and state courts keep equity in play in statutory and common-law cases—from ERISA to contracts, environmental law to trade secrets, and beyond. Equity soldiers on, despite law schools’ dropping the Equity course and despite the merger of law and equity in almost all courts and the Rules of Civil Procedure. Complete merger remains elusive. Where law fails or falls short, the pull of equity is greatest. Equitable remedies are key where money substitutes provide inadequate protection. Bray bluntly states the need: “There must be some way for courts to compel action or non-action.” Overall, Bray’s work requires readers to stop and think before dismantling the distinct system of equity. Continue reading "Staying Power of Equity"