A Post Minimum Contacts World

Reviewing Patrick J. Borchers, Ford Motor Co. v. Montana Eighth Judicial District Court and “Corporate Tag Jurisdiction” in the Pennoyer Era, 72 Case W. Res. L. Rev. 45 (2021)

Refashioning Old Tools for Modern Society

Reviewing Peter Ormerod, Privacy Qui Tams, 98 Notre Dame L. Rev. __ (forthcoming 2023), available at SSRN

The Attorney-Client Privilege Goes to Washington

Reviewing David Rapallo, House Rules: Congress and the Attorney Client Privilege, 100 WASH. U. L. REV. 455 (2022)

The Failed Superiority Experiment

Federal law requires a class action be “superior to alternative methods for fairly and efficiently adjudicating the controversy.” This superiority requirement has gone unstudied, despite existing for half a century. This Article undertakes a comprehensive review of the superiority case law. It reveals a jurisprudence riddled with inconsistency as courts adopt diametrically opposed interpretations of the requirement. Originally crafted to encourage predictable, consistent class action decisions, superiority has mutated over the years into a dangerous wild card—subjectively used to stymie aggregate litigation. The solution is not adding a new requirement to the already onerous rules for class certification. Instead, judges should rely on existing yet currently underutilized case management tools and abandon the failed superiority experiment

The Failed Superiority Experiment

Federal law requires a class action be “superior to alternative methods for fairly and efficiently adjudicating the controversy.” This superiority requirement has gone unstudied, despite existing for half a century. This Article undertakes a comprehensive review of the superiority case law. It reveals a jurisprudence riddled with inconsistency as courts adopt diametrically opposed interpretations of the requirement. Originally crafted to encourage predictable, consistent class action decisions, superiority has mutated over the years into a dangerous wild card—subjectively used to stymie aggregate litigation. The solution is not adding a new requirement to the already onerous rules for class certification. Instead, judges should rely on existing yet currently underutilized case management tools and abandon the failed superiority experiment

Antitrust Class Actions in the Wake of Procedural Reform

What is the current vitality of antitrust enforcement? Antitrust class actions—the primary mode of competition oversight—has weathered two decades of procedural reform. This Article documents the effects of those reforms. Relying on an original dataset of over 1300 antitrust class action settlements, this Article finds such cases alive but far from well. Certain suits do succeed on an impressive scale, returning billions of dollars to victims. But class action reform has made antitrust enforcement narrower, more time-consuming, and costlier than only a decade ago. And, as this Article’s sources reveal, new battle lines are forming. Across the political spectrum, people are trumpeting antitrust as the next great hope to resolve trade issues, equalize wealth inequity, and reform Big Tech. Even amid these rising calls, class action opponents continue to campaign for more reform. This Article describes those efforts and provides the essential data to repel them

Death by \u3cem\u3eDaubert\u3c/em\u3e: The Continued Attack on Private Antitrust

In 2011, with five words of dicta, the Supreme Court opened Pandora’s box for private antitrust enforcement. By suggesting trial courts must evaluate the admissibility of expert testimony at class certification, the Court placed a significant obstacle in the path of antitrust class actions. Following the Supreme Court’s lead, most courts now permit parties to bring expert challenges far earlier than the traditional summary judgment or pretrial timing. Premature rejection of expert testimony dooms budding private antitrust suits — cases that play an essential role in modern antitrust enforcement. The dangers for private antitrust plaintiffs are compounded by the Court’s opaque pronouncements on how to assess expert testimony. Confusion over how to evaluate antitrust economic experts, both substantively and procedurally, allows courts to use their gate-keeping power to undermine private antitrust enforcement. Despite a large body of scholarship on Daubert (the test for expert admissibility), little has been written on its unique intersection with antitrust class actions. This Article fills that void by exploring how Daubert analysis at class certification hamstrings antitrust enforcement. The Article begins by discussing how judicial evaluation of expert testimony has evolved, with a particular eye to how courts address antitrust economic expert testimony at class certification. It then explains why this new barrier potentially places an impassible, unjustified roadblock in private antitrust enforcement’s path

Exorcising the Clergy Privilege

This Article debunks the empirical assumption behind the clergy privilege, the evidentiary rule shielding confidential communications with clergy. For over a century, scholars and the judiciary have assumed generous protection is essential to foster and encourage spiritual relationships. Accepting this premise, all fifty states and the District of Columbia have adopted virtually absolute privilege statutes. To test this assumption, this Article distills data from over 700 decisions — making it the first scholarship to analyze state clergy privilege jurisprudence exhaustively. This review finds a privilege in decline: courts have lost faith in the privilege. More surprisingly, though, so have clergy. For decades, clergy have recast communications to ensure they fall outside testimonial protection — thus challenging how essential confidentiality actually is to spiritual relationships. The Article discusses both why clergy testimony frequently decides the question of privilege and the corresponding query of why some clergy break confidences. This understanding breathes new life into efforts to revise state statutes to reflect the narrowing privilege rather than perpetuate illusory promises of broad protection