Monthly Archives: February 2019

In Praise of Non-Partisan Law Reform of Class Actions

Class actions remain a work in progress in many jurisdictions around the globe. Several amendments to Federal Rule 23 took effect on December 1, 2018, after more than four years of deliberation by the Advisory Committee on Civil Rules. The Ontario Law Reform Commission is in the final stages of an eighteen-month comprehensive review of class actions, the first in the class action statute’s history in that province. Likewise, the Australian Law Reform Commission recently submitted its report to the Attorney General recommending amendments to its class action procedure, while the Victorian Law Reform Commission’s report on Litigation Funding and Group Proceedings was tabled in the Victorian Parliament in June 2018. Efforts at legislative reform in the United States, however, have stalled. No doubt to the considerable relief of the plaintiff bar, sweeping changes to class action procedure introduced by a Republican Congress in the Fairness in Class Action Litigation Act of 2017 (FICALA) will not come to pass, as the bill failed to advance in the Senate prior to the end of the previous Congress and Democratic control of the House of Representatives in the new Congress.

Still, the appetite for reforming class actions remains, not least among corporate interests eager to capitalize on legislative efforts to cut regulations and curb litigation. Anticipating that reform efforts will continue and FICALA will reappear in reincarnated form, Howard Erichson usefully dissects the proposed amendments in Searching for Salvageable Ideas in FICALA, one of six papers published as part of a symposium at Fordham Law School entitled “Civil Litigation Reform in the Trump Era: Threats and Opportunities.” FICALA represents “the most aggressive attempt in recent memory to dismantle the apparatus of mass litigation through procedural reform.” Introduced less than three weeks after President Trump took office and passed by the House along party lines, FICALA appears to be less about improving judicial efficiency or updating an outmoded procedure than a “defendant-driven effort to reduce liability exposure by making it difficult for plaintiffs to aggregate claims.” While most of the bill has little to commend itself to Erichson and other class action experts, a few proposals have the potential to improve the litigation process. In his essay, Erichson discusses the irredeemable and the salvageable ideas in the reform bill, both in convincing fashion. Continue reading "In Praise of Non-Partisan Law Reform of Class Actions"

Living Under Imperial Constitutional Law in Puerto Rico

Sam Erman, Almost Citizens (2018).

Sam Erman ends his new book Almost Citizens by describing Puerto Rico as “the oldest colony in the world” (P. 161). This word, colony, might strike some as an overstatement, for the United States is never supposed to have had colonies. Others might offer up “protectorate” or other alternate terms to capture Puerto Rico’s constitutional ambiguity as something less than that of a state—none of which would be any less descriptively coherent than the island’s technical designation as “an unincorporated territory.” Erman ends his long-awaited monograph with this statement exactly because his careful and compassionate history takes direct aim at the legal ambiguity that has denied Puerto Ricans their full equality as American citizens. Erman’s story of American empire makes plain that conceptual or doctrinal equivocation has never altered the substantive reality that Puerto Ricans still live today with the very real legacy of American colonialism.

There is an underlying tone of moral indignation and loss in Almost Citizens that is all too easy to appreciate today. In the recent aftermath of Hurricane Maria, it is quite evident that many are still comfortable with Puerto Rican’s liminal status in our constitutional system, and happy to engage in a victim-blaming denial of their full inclusion as Americans. Erman’s monograph shows how Puerto Rico’s ambiguous status persisted alongside grand American claims to the promotion of democracy worldwide. It argues further that by sustaining  this dissonance, the Supreme Court lessened constitutional citizenship for all Americans. Erman repeatedly shows how what he calls the “Reconstruction Constitution” of the post-civil War was “sacrificed…on the altar of empire” (P. 21). To decouple the presumption that territory and citizenship were co-terminus, the Court necessarily hollowed out the American franchise as it was extended to some at home and denied to others abroad. Continue reading "Living Under Imperial Constitutional Law in Puerto Rico"

Asymmetric Normalcy

Joseph Fishkin and David Pozen, Asymmetric Constitutional Hardball, 118 Colum. L. Rev. 915 (2018).

Say what you will about sports metaphors in legal writing, but Professor Mark Tushnet’s “constitutional hardball” descriptor has proven remarkably useful in capturing one of the most vexing political dynamics of our time: the political parties’ resort to “claims and practice…that are without much question within the bounds of existing constitutional doctrine and practice but that are nonetheless in some tension with…the ‘go without saying’ assumptions that underpin working systems of constitutional government.”

Recent examples of such practices abound. A short list might include efforts by lame-duck Republican legislators in several states to strip state executive offices of power before newly elected Democratic governors take office; the abandonment of the filibuster and embrace of nomination holds in judicial appointments; and refusals to raise the national debt ceiling in disputes over broader legislative priorities. In these terms, Democrats’ refusal to support the President’s call for wall funding is not hardball (for opposition party opposition to a presidential initiative breaches no norm); Republican refusal to allow a vote to fund any government operations unless Democrats agree to wall funding is hardball to a tee (so to speak) (for it breaches the norm of passing at the least continuing resolutions to allow government to function until compromise over particular agenda items can be reached).

After grappling with how we might best understand this behavior (from either side) as more or less destructive of our separation-of-powers scheme in his article Self-Help and the Separation of Powers, Professor David Pozen, here joined by Professor Joseph Fishkin, now takes on the daunting task of describing how such hardball tactics have been deployed in practice. Their primary findings: both parties play hardball, but Republicans do it more often than Democrats, and the reasons for this flow from the differing institutional incentives and ideological commitments of the parties. Whether one agrees with this assessment or not—and Fishkin and Pozen have generated multiple responses already—the piece will be necessary reading for those who are interested in understanding the phenomenon or in developing strategies to manage it. Continue reading "Asymmetric Normalcy"

Drowning in a Bucket: Nonrecourse Loans for Litigants

Ronen Avraham & Anthony Sebok, An Empirical Investigation of Third Party Consumer Litigant Funding, 104 Cornell L. Rev. __ (forthcoming), available at SSRN.

Contracting parties often suffer from information problems, lack of expertise, and limited cognitive abilities. They sometimes make decisions under stressful conditions. There are always others happy to exploit these phenomena to make extra profits. One sphere in which such exploitation has attracted much attention since time immemorial is usurious interest rates. In their fascinating empirical study, Ronen Avraham and Anthony Sebok shed new light on this phenomenon in an expanding new market for credit—namely, Litigants Third-Party Funding (LTPF). These are nonrecourse loans, given by commercial firms to individual tort plaintiffs, which are then repaid from the proceeds of the lawsuit.

Avraham and Sebok obtained a unique dataset of about 200,000 plaintiffs’ applications for loans handled by one of the largest firms that engages in such funding. The dataset comprised both approved and refused applications. Among other things, it included the personal details of each applicant; the name of the attorney representing him or her; a description of the case; the amount sued for; medical and insurance reports on the accident; an independent legal assessment of the lawsuit’s likelihood of success and potential value; and information about existing liens on the award that the plaintiff might receive. With regard to approved applications, the dataset included also the amount funded; the monthly interest rate; the length of the legal proceedings; the amount owed when the case was resolved; and the amount actually repaid. (Pp. 6–7.) Continue reading "Drowning in a Bucket: Nonrecourse Loans for Litigants"

How to Tell Other Sexual Harassment Stories

Tristin Green and Angela Onwuachi-Willig are interested in the act of narration, and the power that lies in the choice to include or exclude. Green explores these themes in her recent essay, Was Sexual Harassment Law a Mistake? The Stories We Tell. As Green recounts, the U.S. Supreme Court recognized hostile work environment as an actionable form of sex discrimination in Meritor Savings Bank v. Vinson. In doing so, the Court seemed to reject the prior view of such harassment as mere “‘personal’ advances of a man toward the singular woman to which he is attracted,” and to adopt a structural view, recognizing that “others in the organization and the organizational structure itself [can be] causes of ongoing hostile environments.”

However, Green excavates the Meritor record, as well as the records of four other major Supreme Court decisions on sexual and racial harassment, and uncovers substantial evidence of structural problems in those workplaces that the Court excluded from its factual recitations and legal reasoning. She finds the stories of the plaintiffs’ co-workers who were also harassed, but whose testimony barely figured in the Court’s telling, and evidence that men other than the individuals accused participated in the same or separate acts of harassment. She also notes the unacknowledged role of the organization in each of these stories. Many of the workplaces she examined were highly segregated by sex, with “leaders . . . [who] did little to nothing to learn about the culture or behaviors in their workplaces,” and in fact exacerbated cultural and structural problems by failing “to change things about which they were aware.” Continue reading "How to Tell Other Sexual Harassment Stories"

Lessons Learned From Abroad About Intestate Inheritances for Unmarried Cohabitants

In 2002, Professor Spitko published An Accrual/Multi-Factor Approach to Intestate Inheritance Rights for Unmarried Committed Partners in the Oregon Law Review. Since then, in 2006, Scotland statutorily began to provide intestate inheritance rights to unmarried cohabitants. Three years later, the Scottish Law Commission recommended reforming and replacing the 2006 law with rights for unmarried cohabitants that would apply to intestate and testate estates. Several years later, in March of 2016, the Justice Committee of the Scottish Parliament published Post-Legislative Scrutiny of the Family Law (Scotland) Act 2006. Professor Spitko analyzed these developments in Scotland and used them as a basis for reexamining his 2002 proposal.

I must admit that I am a huge fan of looking to other countries’ experiences for insight into our own legal system. I also think our intestacy laws need to be updated to reflect societal changes that have happened in recent years. As a result, I found Professor Spitko’s article to be fascinating. Continue reading "Lessons Learned From Abroad About Intestate Inheritances for Unmarried Cohabitants"

Can Damage Calculations in Tort Cases be Unconstitutional Because They Discriminate on the Basis of Race? Yes, and Here’s Why.

In basic tort damage doctrine, a person injured by a tort can recover lost wages. This means it costs less to harm some people than others. People who earn less, whether because of reduced educational opportunities, racism, geography, family responsibilities, or other factors, will suffer lower damages than people who earn more. Defendants (and insurance companies) will have to pay less to “make them whole.” This aspect of tort damages is in tension with, if not in contradiction to, the notion that—formally—everyone counts equally in torts. This tension rarely gets attention or critique, in part because tort damages are determined individually, usually through informal and private settlements

In one context of U.S. tort law, however, the relationship between damages and inequality is on the surface and subject to critique. When an injured individual lacks an earnings history, race-based statistical tables estimating wages, life expectancy, and work-life expectancy are still routinely used in calculating tort damage awards. African-American plaintiffs, as a result, receive lower damage awards than white plaintiffs in such circumstances. Many people are surprised to hear this practice endures, although scholars have criticized it for decades.1 Valuing Black Lives is the most detailed explanation yet published as to why the use of race-based tables in calculating tort damages is unconstitutional. It is a companion piece to the authors’ previous article, Torts and Discrimination, earlier reviewed in Jotwell.Tal Zarsky

Tal Zarsky

As more and more of our daily activities and private lives shift to the digital realm, maintaining digital security has become a vital task. Private and public entities find themselves in the position of controlling vast amounts of personal information and therefore responsible for assuring such information does not find its way to unauthorized hands. In some cases, there are strong incentives to maintain high standards of digital security, as security breaches are a real pain. When reports on such breaches are made public, they generate reputation costs, lead to regulatory scrutiny and often call for substantial out-of-pocket expenses to fix. Unfortunately, however, the internal incentives for maintaining high security standards are often insufficient motivators. In such cases, the security measures taken are unfitting, outdated and generally unacceptable. These are the instances where legal intervention is required.

There are several possible regulatory strategies to try and improve digital security standards. One option calls for greater transparency regarding breaches that led to personal data leakage and other negative outcomes. Another option calls upon the government to set data security standards and enforce them, at least in key sectors (more on these two options and their limitations, below). Yet an additional central form of legal intervention is through private litigation and the court system. However, key doctrinal hurdles in the United States currently make it extremely difficult to sue for damages resulting from security breaches. In an important recent paper, Daniel Solove and Danielle Citron, two prominent privacy scholars, explain what these hurdles are, how to overcome them, and why such doctrinal changes are essential. Continue reading "Data Breach Harms—Bringing in the Courts, or Leaving Them Out?"

“Will Feminist Judges Really Make a Difference?”

Bridget J. Crawford &  Anthony C. Infanti, Feminist Judgments: Rewritten Tax Opinions (New York: Cambridge University Press, 2017).

Feminist judgments projects originate in Canada.1 The initial Canadian project saw six equality decisions rewritten by ten women. The aim: to see if equality under the Canadian Charter of Rights and Freedoms would be interpreted and applied differently if feminists were authoring the decisions. Since that time, projects have proliferated, with volumes produced in England and Wales (Margaret Davies reviewed that volume in Jotwell in 2012), Australia, the United StatesIreland and Northern Ireland, and Aotearoa New Zealand. The Canadians enjoy the exercise of rewriting equality judgments enough to have offered a second cluster of decisions last year.2 And new volumes are expected from jurists in AfricaIndia, and on International Law.

The first volume of American re-writes focused on decisions of the US Supreme Court. Surprising only to people who do not teach tax, the next volume of American re-writes takes up tax opinions. Released on December 28, 2017, as an invitation to continue holiday festivities, a volume edited by Bridget Crawford and Anthony Infanti serves up a veritable buffet of delights.3 Eleven rewritten American tax opinions comprise the volume. Six are rewritten Supreme Court decisions, one if a rewritten federal circuit court opinion, and four are rewritten Tax Court opinions. Continue reading "“Will Feminist Judges Really Make a Difference?”"

Increasing EITC Take-up in the Age of TurboTax

Jacob Goldin, Tax Benefit Complexity and Take-Up: Lessons From the Earned Income-Tax Credit, available at SSRN.

One dilemma for policymakers is how to get people to take advantage of social welfare programs. In the case of the Earned Income Tax Credit (“EITC”), the goal is to encourage eligible individuals to claim the credit on their tax return. Take-up rates for the EITC are quite good (about 80% overall), but ideally would be higher. Typically the approach to increasing EITC take-up is information campaigns, like EITC awareness day. The conventional wisdom has been that the more people know about the EITC, the more likely eligible recipients are to claim it. But is it right that advance notice is important? If people use tax software that will automatically calculate the EITC for them, how important is it that they are made aware of the benefit ahead of time? Perhaps not very, as suggested by Jacob Goldin in his forthcoming article, Tax Benefit Complexity and Take-up: Lessons from the Earned Income Tax Credit.

The key insight from Goldin’s article is that in the modern age, virtually anyone who files a tax return is presented with the opportunity to claim the EITC. This is because the vast majority of taxpayers—96 percent in 2015 according to Goldin—use assisted preparation methods (“APMs”) such as self-preparation software or a tax return preparer. Using either of those methods, it is extremely unlikely to fail to claim the credit accidentally. (Though, as Goldin notes, some taxpayers may consciously choose not to claim the credit even though they are eligible.) The paper’s main conclusion is logical yet important: people who are eligible for the EITC but who fail to claim it are generally people who fail to file returns at all. Thus, if policymakers want to increase EITC take-up, they must increase the filing rate. Continue reading "Increasing EITC Take-up in the Age of TurboTax"

Should We Use the Market to Address Climate Change?

Alice Kaswan, Energy, Governance, and Market Mechanisms, 72 U. Miami L. Rev. 476 (2018).

The recent report from the Intergovernmental Panel on Climate Change this fall has made clear the urgent need to address climate change. What should be the primary policy tool that we use to address the problem? Economists have vociferously advocated for the use of carbon taxes or cap-and-trade permit systems, on the grounds that they provide the most efficient way to decarbonize global economies. Yet carbon taxes have had little success in the political arena. Many of the existing policies that countries and states have used to address carbon emissions have been regulations or subsidies, not market-based approaches. Is this a fundamental misstep on the part of policymakers?

In her recent article, Energy, Governance, and Market Mechanisms, Alice Kaswan argues that this is not a misstep, and that in fact there are good reasons—political, democratic, even economic—to prefer non-market-based instruments to advance decarbonization. Her article is ambitious in its scope but effective in raising important questions about what approach is best. Continue reading "Should We Use the Market to Address Climate Change?"