On What A Private Attorney General Is--And Why It Matters

May 17, 2004 marked the fiftieth anniversary of the Supreme Court\u27s decision in Brown v. Board of Education.\u27 This precise day also marked the sixty-first anniversary of the Supreme Court\u27s first use of the phrase private attorney general. For about three decades after this initial 1943 appearance, the private attorney general concept surfaced only occasionally in the legal literature. Starting in the 1970s, however, its presence became quite regular, and that regularity has escalated steadily to the present: on average, during the past fifteen years, every single workday, somewhere in the United States, some judge has written a legal opinion or some scholar has penned an article invoking the private attorney general concept. That the phrase is employed so frequently suggests its utility as a concept. What is odd, though, is that when probed, the concept proves surprisingly mercurial. The phrase is sometimes used to refer to plaintiffs, occasionally used to refer to defendants, and typically used to refer to lawyers. (What other concept is so malleable that it can be deployed to signify either a plaintiff or a defendant, a lawyer or a client?) Legislatures create private attorneys general by statute, but before they did and when they have not, courts have created them by judicial decision, and executive agencies by fiat. Congress creates private attorneys general, but so do state legislatures, state courts, and state administrative agencies. The phrase is an integral part of the doctrine of standing? and of the rules concerning attorneys\u27 fees. In its single most important decision about private attorneys general, the United States Supreme Court ruled that the Constitution necessarily restrains the concept, while simultaneously implying that courts of equity nonetheless retain inherent powers to propagate it. If there is any fixed star in this constellation, it is that the private attorney general is a placeholder for any person who mixes private and public features in the adjudicative arena. Yet even that compass point proves elusive, as there are so many players who mix public and private functions in so many different ways that the concept holds the place for a motley cast of disparate characters. Anyone, one commentator argues, can call himself a \u27private attorney general.\u27 While scholars and judges have often stated that the private attorney general performs a mix of public and private functions, they have much less frequently attended to the variety of different public-private mixes contained within this rubric. My goal in this Article is to map these mixes-to distill from the singular private attorney general concept a range of distinct private attorneys general-and then to convince the reader that this new taxonomy is a helpful heuristic device. I take as the template for the logic of my argument Alfred Kinsey\u27s taxonomy of sexual orientations, an analogy that may be distant in content but is nonetheless similar in form. Kinsey, a taxonomist by training, rebelled against society\u27s insistence that human sexuality occurred in but two diametrically opposed forms: heterosexual and homosexual

Why Enable Litigation? A Positive Externalities Theory of the Small Claims Class Action

This Article appears in a Symposium commemorating the Supreme Court's decision in Phillips Petroleum Co. v. Shutts. The legal claims that gave rise to Shutts were meritorious, yet of relatively modest value. Individuals are unlikely to litigate such negative value claims because the costs of doing so outweigh the benefits they will receive; defendants are well-situated to escape liability. Conventionally, scholars describe this situation as posing a collective action problem and demonstrate how the class action mechanism works to solve that problem. In this Article, I discuss the problem of negative value claims in a related yet distinct manner. The fact that parties will not pursue these claims is, I argue, an example of the underproduction of a so-called public good. That good is a lawsuit. Litigation can be conceptualized as a public good, with its pursuit producing positive externalities. The Article enumerates these collateral social benefits, grouping them as: 1) decree effects; 2) settlement effects; 3) threat effects; and 4) institutional effects. The addition of this analysis to the scholarly literature serves several functions. Among these is that it illuminates how little collective action really takes places in small claims cases; how relatively unimportant the compensatory aspects of the case are compared to its other social functions; how the concept of deterrence does not capture these non-compensatory benefits as well as the concept of externalities does; and how small claims class actions are more like other types of class cases than generally presumed

Research study on materials processing in space, experiment M512

Gallium arsenide, a commercially valuable semiconductor, has been prepared from the melt (M.P. 1237C), by vapor growth, and by growth from metallic solutions. It has been established that growth from metallic solution can produce material with high, and perhaps with the highest possible, chemical homogeneity and crystalline perfection. Growth of GaAs from metallic solution can be performed at relatively low temperatures (about 600C) and is relatively insensitive to temperature fluctuations. However, this type of crystal growth is subject to the decided disadvantage that density induced convection currents may produce variations in rates of growth at a growing surface. This problem would be minimized under reduced gravity conditions

THE PRICE WE PAY: The Efficacy Requirement for New Drugs Under the Food, Drug and Cosmetic Act

The newly sworn Republican-controlled Congress has, as one of its primary objectives, the downsizing of government. Speaker Newt Gingrich has specifically targeted the federal Food and Drug Administration (FDA) for the conservative wrath. The political climate that led to the change in power in Congress is partly based on the nation's anti-regulatory demeanor -- the belief, whether correct or mistaken, that the regulators have run riot, that there is too much power in the hands of a few appointed bureaucrats. The FDA draws specific attention because of the palpable effects of its rulings in the lives of all citizens. Specifically, the requirements for the pre-market approval of new drugs have been criticized for being too cumbersome. This paper will attempt to draw a compromise between the observed problem of overregulation in that area and the still important policies underlying the federal Food, Drug, and Cosmetic Act (FDCA). It will call for the elimination of the efficacy requirement for new drug applications (NDA) as a way to reduce the costs of developing new drugs, while maintaining the safely requirement in order to ensure the public health