Brief of Complex Litigation Law Professors as Amici Curiae in Support of Respondent

The amici are law professors who teach and write in the field of federal civil procedure and complex litigation. Amici share an interest in presenting this Court with an impartial view on the function of the class action and its relationship to the law of Article III justiciability to inform the question presented in this case

Arbitration\u27s Unraveling

It has been over a decade since the Supreme Court declared that the Federal Arbitration Act preempts state-law policies that stand as an obstacle to enforcement of the class-banning arbitration clauses that companies tuck into standard-form contracts. In that time, plaintiffs’ lawyers have tried challenging class action–banning arbitration provisions on myriad legal grounds, as well as pressing for federal and state legislation to undo the Court’s ruling in AT&T Mobility LLC v. Concepcion. Neither strategy has borne much fruit—until now. In the past few years, congressional action has exempted specific categories of cases from mandatory arbitration, suggesting that an area-by-area attack on the arbitral edifice may be fruitful. More consequentially, in my view, the Supreme Court has cast substantial doubt on the “liberal federal policy favoring arbitration” upon which contemporary FAA jurisprudence rests. This is big news, suggesting that all judge-made, arbitration-specific rules created in the service of a supposed policy favoring arbitration are ripe for reexamination. One consequence, I show, is that the FAA must now be understood to exempt the contracts of all workers engaged in interstate commerce. Meanwhile, entrepreneurial plaintiffs’ firms have sought to force corporate defendants to make good on their contractual promises to bear the cost of arbitrating large numbers of nominally individual claims. By marketing broadly to would-be claimants via social media and then financing the claimants’ portion of arbitral filing fees, these firms have filed thousands of simultaneous claims, forcing defendants to either settle or spend tens of millions of dollars on arbitral fees alone. At present, companies are groping for contractual tweaks to foreclose the risk of mass arbitration. But I expect those efforts will be thwarted by state unconscionability law in many states. And I also expect that companies will increasingly drop their arbitration clauses altogether and seek to implement standalone class action–waiver clauses, removing any pretense that the defense community was ever interested in arbitration, as opposed to class-action bans. But here, too, I think state unconscionability law will bring us back full circle to the state-by-state map that existed prior to Concepcion. In short, there are reasons to believe that the hegemony of class-banning arbitration is unraveling before our very eye

Reinventing Structural Reform Litigation: Deputizing Private Citizens in the Enforcement of Civil Rights

The aim of this Article is to explore the possibility of constructing a model that harnesses the power of private citizens to reform unconstitutional practices, particularly in the critical area of police-related rights violations. I seek here to reintegrate private citizens into the enforcement of public laws; to tap the private experiential and financial resources that were a necessary condition of the great structural reform efforts of the civil rights movement of the 1950s and 1960s. The vehicle by which I propose to accomplish these ends is a simple, yet novel, amendment to 42 U.S.C. § 14141, the statute which authorizes the Justice Department to seek broad injunctive remedies against municipal police departments engaged in unconstitutional “patterns and practices.” While Supreme Court standing jurisprudence would preclude private litigants from engaging in the sort of reformist enterprise envisioned in § 14141, I advance a theory of deputation which would give citizens a powerful voice in the social discourse on police-related policies. Drawing upon the notion of “public-private” partnerships, I argue here for the creation of an agency relationship between the executive charged with enforcing prohibitions against unconstitutional police practices, and the individuals and community groups that are directly affected by, and have the information, means and incentives required to challenge those practices. [We] have with special soul . . . Lent him our terror, dress\u27d him with our love, And given his deputation all the organs Of our own pow\u27r

In Defense of Making Government Pay: The Deterrent Effect of Constitutional Tort Remedies

Legal economists are concerned with setting optimal deterrence levels. Armed with information concerning the public and private costs and benefits of a particular harmful activity, the legal economist seeks to set a “price” for the activity which, to some socially optimal extent, minimizes external costs while retaining external benefits. If the economist\u27s information is perfect, he can predict precisely how an economically rational actor will respond to a particular price and achieve optimal deterrence of activities whose costs outweigh their benefits

(Forced) Arbitration in America: Suppressing Claims, Undermining Corporate Accountability, And Perpetuating Injustice

The U.S. Senate Committee on the Judiciary issued the following testimony by Myriam Gilles, professor at the Benjamin N. Cardozo School of Law, involving a hearing on Apr. 3, 2019, entitled (Forced) Arbitration in America: Suppressing Claims, Undermining Corporate Accountability, And Perpetuating Injustice

The Private Attorney General in a Time of Hyper-Polarized Politics

With the enactment of the Federal Trade Commission Act (“FTC Act”) in 1914 and the Wheeler–Lea Act in 1938, Congress sought to establish a brawny federal consumer protection regime to guard against the myriad unfair and deceptive practices that threatened harm to American consumers. But courts in this era interpreted these statutes to confer exclusive enforcement authority in the Federal Trade Commission (“FTC”), declining to infer a private right of action. For many decades, the resulting enforcement gap in consumer protection law was filled largely by state Unfair and Deceptive Practices Acts (“UDAPs”), which sanction litigation by both public and private enforcers. But while consumer-initiated litigation under UDAPs has traditionally played an important role in achieving consumer justice, recently, private UDAP enforcement is imperiled by powerful corporate opponents who have successfully lobbied for changes that make it more difficult for consumers to sue for relief. Furthermore, these “reform” efforts have led to greater variation between and among UDAPs, rendering multi-state consumer class actions under Rule 23(b)(3) far more difficult to certify. Meanwhile, at the federal level, head-spinning fluctuations of political power and hardening partisanship reveal the weakness of an inconsistent FTC enforcement agenda. In light of growing constraints on state UDAPs and the increasingly erratic, politicized nature of federal enforcement, this Article revisits a simple idea: amending the Federal Trade Commission Act to add an unwaivable private right of action, allowing injured consumers to supplement the FTC’s enforcement activities by bringing legal actions to remedy widespread harm. This application of the private attorney general is grounded in the reality that while politics may ebb and flow, citizens suffering injuries in the marketplace are a constant. Deploying these citizens to consistently enforce consumer protection laws—no matter the party in power or the Commissioner in charge—generates a more stable administration of laws and better ensures that corporate actors refrain from engaging in widespread misconduct

Brief of Amici Curiae Maureen Carroll, Christine Bartholomew, Andrew Bradt, Brooke Coleman, Robin Effron, Myriam Gilles, Robert Klonoff, Suzette Malveaux, David Marcus, Elizabeth Porter, D. Theodore Rave, Elizabeth Schneider, and Adam Zimmerman in Support of Defendants-Appellees/Cross Appellants

Amici are law professors with expertise in the requirements for class certification under Rule 23 of the Federal Rules of Civil Procedure. Amici have written extensively about class action litigation, including the use of class actions in civil rights cases seeking declaratory or injunctive relief. Together, we share an interest in ensuring that the Federal Rules of Civil Procedure continue to be construed so as to ensure the “just, speedy and inexpensive determination of every action and proceeding.” FED. R. CIV. P. 1