Originalism and Summary Judgment

Over the last several years, the Supreme Court has revolutionized modern criminal procedure by invoking the Sixth Amendment right to a jury trial to strike down several sentencing innovations. This revolution has been led by members of the Supreme Court who follow an originalist method of constitutional interpretation. Recent work by the legal historian Suja Thomas has raised the question whether a similar originalist revolution may be on the horizon in civil cases governed by the Seventh Amendment’s right to a jury trial. In particular, Professor Thomas has argued that the summary judgment device is unconstitutional because it permits judges to resolve a set of cases - those where the sufficiency of a party’s evidence is in dispute - that could only be resolved by juries at the time the Seventh Amendment was ratified. In this Article, I argue that Professor Thomas’s historical findings are an insufficient basis from which an originalist might conclude that summary judgment is unconstitutional. Professor Thomas\u27s analysis more or less rests on a comparison of jury practices in 1791 with jury practices today. But outside a context where one is trying to establish that a practice that existed at the time of the founding is still constitutional today, originalism cannot rest on a mere comparison of founding-era practices to modern practices. Not everything that juries did in 1791 was understood to be unchangeable absent a constitutional amendment. In order to separate the things that juries did that were important to the Seventh Amendment from the things that they did that were not, one must assemble a frame of reference external to the jury practices themselves. This external frame of reference might be assembled from many places - a comparison of founding-era lexicons to the constitutional text, an examination of founding-era statements on the question, an assessment of the original purposes of the Seventh Amendment, etc. - but it has to be assembled from somewhere. Professor Thomas has not yet focused her energies here. As such, more work needs to be done before an originalist can conclude summary judgment is unconstitutional

The End of Class Actions?

In this Article, I give a status report on the life expectancy of class action litigation following the Supreme Court\u27s decisions in Concepcion and American Express. These decisions permitted corporations to opt out of class action liability through the use of arbitration clauses, and many commentators, myself included, predicted that they would eventually lead us down a road where class actions against businesses would be all but eliminated. Enough time has now passed to make an assessment of whether these predictions are coming to fruition. I find that, although there is not yet solid evidence that businesses have flocked to class action waivers and that one big category of class action plaintiffs (shareholders) remain insulated from Concepcion and American Express altogether I still see every reason to believe that businesses will eventually be able to eliminate virtually all class actions that are brought against them, including those brought by shareholders

The Politics of Merit Selection

In this Article, I undertake an evaluation of a method of judicial selection known as merit selection. The merit system is distinctive from the other systems of judicial selection in the powerful role it accords lawyers. Proponents of the merit system contend that it is superior to the other forms of judicial selection -- elections or appointment by elected officials -- because lawyers are more likely to select judges on the basis of merit and less likely to select judges on the basis of politics (i.e., the personal ideological preferences of judicial candidates) than are voters or elected officials. But even if lawyers are better able to identify more intelligent or more qualified judges, it does not follow that they are less inclined to consider the political beliefs of judicial candidates. Lawyers are just as likely to be concerned -- if not more concerned -- with the decisional propensities of judicial candidates as are voters and elected officials. Moreover, insofar as a judge’s personal ideological preferences are correlated with his or her decisions, and insofar as those preferences are often more easily observed than his or her decisional propensities, lawyers are likely to accord those preferences just as much weight as voters or elected officials. That is, merit selection may not remove politics from judicial selection so much as it moves the politics of judicial selection into closer alignment with the ideological preferences of the bar. This movement could have consequences if the distribution of ideological preferences within the bar differs from the distribution among the public. Many people believe that lawyers as a group are, on average, more liberal than are members of the general public. If this is true, then one might expect that bar associations would select judges who are more liberal than those who would have been selected by the public or their elected representatives. Although far from conclusive, I collected data on the judicial nominations in two merit states, Tennessee and Missouri, and the data is consistent with this hypothesis

Objector Blackmail Update: What Have the 2018 Amendments Done?

In 2012, I, along with Brian Wolfman and Alan Morrison, wrote a letter to the Federal Advisory Committee for the Rules of Appellate Procedure asking them to adopt a new rule to prohibit class members who file objections from dismissing their appeals in exchange for side settlements from class counsel... The new rule does not go as far as our letter recommended: it does not prohibit side payments but, instead, allows side payments if the district court that approved the class settlement also approves the side payment.7 I was skeptical when the new rule was adopted that it would mitigate objector blackmail. But now that we have had over one full year of experience with the new rule, we can take a look to see what the new rule has actually done. In this Essay, I attempt to do just that. In Part I of this Essay, I describe the problem of objector blackmail, why prohibiting side payments to objectors would be the best way to screen blackmail-minded objections from other objections, and why I did not think the new FRCP 23(e)(5)(B) would do so as effectively. In Part II, I examine what district courts have done with their new side payment approval authority over the first sixteen months. I found six orders by district courts on whether to approve side payments: four approvals and two denials. Although this is not much data, qualitative review of the orders does not inspire confidence that district court judges will have the requisite backbone to reject blackmail- minded side payments. On the other hand, the approved side payments may be less lucrative under the new rule. In Part III, I try to assess how these two contrary forces might weigh against each other by studying empirically whether the new rule has discouraged class action objectors from taking appeals. Although my methods are crude, they suggest there has been no slowdown in these appeals in the first year of the new rule

Proposed Reforms to Texas Judicial Selection: Panelist Remarks

I am going to set the stage by providing a little background about the various methods that States around the country use to select their judges. I am also going to remind us of many of the considerations that we like to think about when we are deciding which of these methods is best. And I am going to push upon you a new consideration that is sometimes not thought about in these discussions as well as share some data regarding this last consideration. But let’s start with some background about the selection methods. There are basically four different ways that States select their judges around the country. The original method in all of the States was political appointment. Almost all the States did the same thing the federal government did from the beginning. And while some of them did not have life tenure, all the States relied either on the legislature, the executive, or both to pick their judges. A handful of States still follow the political appointment method today

The End of Objector Blackmail?

Courts and commentators have long been concerned with holdout problems in the law. This Article focuses on a holdout problem in class action litigation known as objector “blackmail.” Objector blackmail occurs when individual class members delay the final resolution of class action settlements by filing meritless appeals in the hope of inducing class counsel to pay them a side settlement to drop their appeals. It is thought that class counsel pay these side settlements because they cannot receive their fee awards until all appeals from the settlement are resolved. Although several solutions to the blackmail problem have been proposed, both courts and commentators appear unaware that class counsel have quietly devised their own solution: class action settlement provisions (known as “quick-pay” provisions) that permit them to receive their fees even before appeals from the settlements are resolved. Drawing on an original data set of all class action settlements approved by federal judges in 2006, I show that over one-third of all settlements already have quick-pay provisions, including the vast majority of securities settlements. This Article both brings to light quick-pay provisions and evaluates whether they are a better solution to the blackmail problem than those proposed by courts and commentators. Although quick-pay provisions can mitigate much of the blackmail threat without the collateral damage caused by other proposed solutions, the provisions have several serious limitations. Instead, I propose a new solution to the blackmail problem: an inalienability rule that prohibits objectors from settling appeals unless their settlements include a modification of the underlying class action settlement agreements

Deregulation and Private Enforcement

Many conservatives oppose much of the administrative state. But many also oppose much of our private enforcement regime. This raises the questions of whether conservatives believe the marketplace should be policed at all, and if so, who exactly should do that policing? In this Essay, based on my new book, The Conservative Case for Class Actions, I take a deep dive into conservative principles to try to answer these questions. I conclude that almost all conservatives believe the marketplace needs at least some legal constraints, and I argue that ex post, private enforcement is superior to the alternatives. Not only is private enforcement the right answer as a matter of theory, but I believe that conservatives need private enforcement as a practical matter if they wish to make progress on their agenda to roll back the administrative state

Twombly and Iqbal Reconsidered

An essay is presented on the decisions taken by the U.S. Supreme Court for the court cases Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal. The author discusses a revolutionary and conservative judicial activism corresponding to both Twombly and Iqbal court cases. It mentions that the court can take an Act of Congress to institute a pervasive fee-shifting regime for discovery costs

Objector Blackmail Update: What Have the 2018 Amendments Done

In 2012, I, along with Brian Wolfman and Alan Morrison, wrote a letter to the Federal Advisory Committee for the Rules of Appellate Procedure asking them to adopt a new rule to prohibit class members who file objections from dismissing their appeals in exchange for side settlements from class counsel... The new rule does not go as far as our letter recommended: it does not prohibit side payments but, instead, allows side payments if the district court that approved the class settlement also approves the side payment.7 I was skeptical when the new rule was adopted that it would mitigate objector blackmail. But now that we have had over one full year of experience with the new rule, we can take a look to see what the new rule has actually done. In this Essay, I attempt to do just that. In Part I of this Essay, I describe the problem of objector blackmail, why prohibiting side payments to objectors would be the best way to screen blackmail-minded objections from other objections, and why I did not think the new FRCP 23(e)(5)(B) would do so as effectively. In Part II, I examine what district courts have done with their new side payment approval authority over the first sixteen months. I found six orders by district courts on whether to approve side payments: four approvals and two denials. Although this is not much data, qualitative review of the orders does not inspire confidence that district court judges will have the requisite backbone to reject blackmail- minded side payments. On the other hand, the approved side payments may be less lucrative under the new rule. In Part III, I try to assess how these two contrary forces might weigh against each other by studying empirically whether the new rule has discouraged class action objectors from taking appeals. Although my methods are crude, they suggest there has been no slowdown in these appeals in the first year of the new rule

Politics of Merit Selection, The

In this Article, I undertake an evaluation of a method of judicial selection in use in many states that is known as merit selection. The merit system is distinctive from the other systems of judicial selection in use today in the powerful role it accords lawyers and, in particular, state bar associations. Proponents of the merit system contend that it is superior to the other forms of judicial selection - elections or appointment by elected officials - because state bar associations are more likely to select judges on the basis of merit and less likely to select judges on the basis of politics than are voters or elected officials. In this Article, I explain why I believe these claims are overstated. In Part II of this Article, I explain the origins and nature of the merit systems used in the United States. In Part III, I examine the claim that merit systems remove politics from the judiciary, showing how Legal Realism casts doubt on this claim. In Part IV, I explore how the political views of the bar might differ from those of the public at large, and I ask whether the proponents of merit selection can justify a system that produces judges who reflect the ideological preferences of the bar rather than the preferences of the electorate