What\u27s Coming for Class Actions,

A trio of cases before the Supreme Court in its current term has the potential to dramatically impact the ability of plaintiffs to bring class actions. By taking up Tyson Foods v. Bouaphakeo, Spokeo v. Robins, and Campbell-Ewald v. Gomez, the Court could be signaling that a shift against class actions is underway which could have significant consequences for plaintiffs seeking class certification. Recently, in Wal-Mart v. Dukes, Comcast v. Behrend, and AT&T Mobility v. Concepcion, the Court handed down decisions that increased the burden on plaintiffs\u27 attorneys to show issues and damages common to all plaintiffs in the proposed class, thereby making class certification increasingly challenging for plaintiffs. If the Court continues its trend, the current trio of cases may further increase the challenges associated with bringing a successful class action

What\u27s Coming for Class Actions,

A trio of cases before the Supreme Court in its current term has the potential to dramatically impact the ability of plaintiffs to bring class actions. By taking up Tyson Foods v. Bouaphakeo, Spokeo v. Robins, and Campbell-Ewald v. Gomez, the Court could be signaling that a shift against class actions is underway which could have significant consequences for plaintiffs seeking class certification. Recently, in Wal-Mart v. Dukes, Comcast v. Behrend, and AT&T Mobility v. Concepcion, the Court handed down decisions that increased the burden on plaintiffs\u27 attorneys to show issues and damages common to all plaintiffs in the proposed class, thereby making class certification increasingly challenging for plaintiffs. If the Court continues its trend, the current trio of cases may further increase the challenges associated with bringing a successful class action

Seismic Shifts: Post-COVID Legal Education and the Profession

The 2020-2021 COVID-19 pandemic created significant upheaval in the legal profession. Courts closed, cases were delayed, and law firms and other legal institutions rapidly moved their employees and operations to a virtual forum. And among this disruption, law schools made unprecedented changes to their curricula and pedagogy as students attended classes over Zoom, through asynchronous means, or in a hybrid fashion that split their learning between in-person and online. These rapid developments have sparked new discussions regarding the future of legal education. Specifically, law schools and the American Bar Association (ABA) are now re-examining their approach to determine the appropriate balance between in-person and remote learning and what best practices should be used in a remote law school classroom. This examination has revealed a deeper interest in online learning in general, with a number of law schools seeking to provide entirely online or hybrid J.D. programs in the post-pandemic world. This article examines the history of seismic shifts in legal education, including the adoption of the case recitation method of learning, the adoption of clinical and practical training, and, finally, the shift towards increased online education. The Article begins by examining earlier disruptions in legal education, specifically the abandonment of the apprenticeship model of learning in favor of case recitation, and then the much-needed adoption of practical training in law schools. Each of these earlier shifts were preceded by similar crisis moments in society-for example, the war on poverty and the creation of federal funding for law schools to step in and provide low cost and pro bono representation for clients without access to traditional legal services. The Article examines these earlier shifts and the crises that created them, their impact on curricular practices, and how they compare to the impact of COVID-19 on the approach to legal education. Specifically, the Article determines that, like earlier shifts, the shift in legal education as a result of COVID-19 is the result of both internal pressure within law schools and external changing forces that mandate a new approach, including adapting to remote work and remote court proceedings. The Article then examines online legal education, tracing the development of pedagogical approaches and their inspiration from other disciplines. Remote learning in law schools has roots deeper than the era of Zoom, with recorded lectures and other distance educational tools having been in operation for decades. However, new pedagogical approaches developed during the COVID-19-era focus on gamification of content, the use of remote lectures, and the importance of assessment and community-building in remote classrooms. Finally, the Article concludes that major shifts in legal education have largely been productive for students and the profession, with COVID-19 ushering in a new era that is more focused on student flexibility and changed practice realities

#PersonalJurisdiction: A New Age of Internet Contacts

This Article explores the complicated relationship between minimum contacts and the modern internet. Part I traces the development of modern personal jurisdiction analyses in the areas of both specific and general jurisdiction. Interesting in this historical overview is the increased reliance on predictability, even as courts have recognized that advanced technologies and infrastructure have made the maintenance of lawsuits infinitely easier than in the days before International Shoe.7 Part II then explores the intersection between personal jurisdiction and the internet as well as the rise of the so-called Zippo “interactivity” test for jurisdiction in cases involving websites. Although Zippo has represented the cornerstone of internet-based jurisdiction since its publication in 1997, there are several problems with the test, including incorrect applications in the area of general jurisdiction and inconsistent applications when websites contain advertisements, contact information, or other possible interactive features. Part III examines the changing nature of the modern internet and the move from Web 1.0 to Web 2.0.8 This change has brought with it increased interactivity in online experiences, including the rise of social media. These changes have made it difficult to continue to apply the Zippo analysis as it currently exists. Accordingly, Part IV of this Article proposes a shift in the manner in which courts should think about personal jurisdiction and website interactivity. Specifically, this Article proposes that courts should move away from interactivity-based analyses to a more holistic analysis that examines the defendant’s expectations based on the increased global presence of the internet and traditional notions of fairness. The analytical framework proposed by this Article seeks to do two things. First, the framework eliminates inconsistent applications of the Zippo test. An examination of the case law reveals that websites with many of the same features are now being classified differently in various jurisdictions. Second, the framework attempts to lay a sustainable groundwork that can withstand future technological innovations. It is without question that the internet has changed substantially since the time of Zippo in 1997. However, the future holds even greater changes for the way in which users communicate online and receive information. Addressing these changes now will lay a sustainable groundwork for the near future, when the web will become more semantic, more personal, and even more ubiquitous

Collateral Damage: Protecting Cultural Heritage in Crimea and Eastern Ukraine

Since the early spring of 2014, the world has watched Russia utilize military forces to invade and annex territory belonging to Ukraine. These actions are, unsurprisingly, raising concerns in Eastern Europe over the prospect of armed conflict in the region, the political consequences of Russian annexation of Ukrainian territory, and the effect of this conflict on ordinary civilians. But there is another potential cost associated with Russia\u27s actions that should not be overlooked - the loss of Ukrainian cultural heritage. History is replete with examples of the destruction of cultural heritage during periods of instability, from Napoleon\u27s systematic looting of Egypt to the state-sanctioned pillage and burning of museums in Kuwait by Iraq during the Persian Gulf War.1 The question now is whether that destiny is inevitable for Ukraine\u27s unique cultural resources, or whether such collateral damage can be prevented

Seismic Shifts: Post-COVID Legal Education and the Profession

The 2020-2021 COVID-19 pandemic created significant upheaval in the legal profession. Courts closed, cases were delayed, and law firms and other legal institutions rapidly moved their employees and operations to a virtual forum. And among this disruption, law schools made unprecedented changes to their curricula and pedagogy as students attended classes over Zoom, through asynchronous means, or in a hybrid fashion that split their learning between in-person and online. These rapid developments have sparked new discussions regarding the future of legal education. Specifically, law schools and the American Bar Association (ABA) are now re-examining their approach to determine the appropriate balance between in-person and remote learning and what best practices should be used in a remote law school classroom. This examination has revealed a deeper interest in online learning in general, with a number of law schools seeking to provide entirely online or hybrid J.D. programs in the post-pandemic world. This article examines the history of seismic shifts in legal education, including the adoption of the case recitation method of learning, the adoption of clinical and practical training, and, finally, the shift towards increased online education. The Article begins by examining earlier disruptions in legal education, specifically the abandonment of the apprenticeship model of learning in favor of case recitation, and then the much-needed adoption of practical training in law schools. Each of these earlier shifts were preceded by similar crisis moments in society-for example, the war on poverty and the creation of federal funding for law schools to step in and provide low cost and pro bono representation for clients without access to traditional legal services. The Article examines these earlier shifts and the crises that created them, their impact on curricular practices, and how they compare to the impact of COVID-19 on the approach to legal education. Specifically, the Article determines that, like earlier shifts, the shift in legal education as a result of COVID-19 is the result of both internal pressure within law schools and external changing forces that mandate a new approach, including adapting to remote work and remote court proceedings. The Article then examines online legal education, tracing the development of pedagogical approaches and their inspiration from other disciplines. Remote learning in law schools has roots deeper than the era of Zoom, with recorded lectures and other distance educational tools having been in operation for decades. However, new pedagogical approaches developed during the COVID-19-era focus on gamification of content, the use of remote lectures, and the importance of assessment and community-building in remote classrooms. Finally, the Article concludes that major shifts in legal education have largely been productive for students and the profession, with COVID-19 ushering in a new era that is more focused on student flexibility and changed practice realities

Arbitrary and Capricious x Artificial Intelligence

The arbitrary and capricious review standard has been interpreted to govern the judicial review of agency factual findings that are produced through informal rulemaking or informal adjudication. In contrast, agency factual findings that are produced through formal rulemaking or adjudication will be reviewed under the Administrative Procedure Act, Section 706(2)(E), which states that such findings can be set aside if they are unsupported by substantial evidence. While the standards technically vary-factual findings that are the product of informal procedures will warrant arbitrary and capricious review, while factual findings that are the product of formal procedures will warrant substantial evidence review most courts consider the standards to have converged, and for there to be little difference in what is analytically required between the two. As such, for ease of discussion, this paper will focus on the arbitrary and capricious standard, but with the contextual background that a similar analytical approach is employed for the substantial evidence standard

Daimler and the Jurisdictional Triskelion

Twice in the past three years, in Goodyear Dunlop Tires Operations, S.A. v. Brown and Daimler AG v. Bauman, the Supreme Court articulated a new landscape of general personal jurisdiction; namely, exercises of dispute-blind jurisdiction will be based on a determination of whether a corporation is at home in the jurisdiction, not on whether the corporation had continuous and systematic contacts in the forum state. The Court\u27s test was further explained in terms of three different fora: where the corporation is incorporated, where it maintains its principal place of business, and where there are unique circumstances suggesting that the corporation is truly at home. Unfortunately, the Court failed to articulate an underlying policy that bound together the three bases of general jurisdiction, and it refused to clarify what types of unique situations might give rise to general personal jurisdiction outside the state of incorporation and principal place of business. Thus, although a new test was articulated, its boundaries and theoretical foundations remain woefully unclear. This Article seeks to elucidate general jurisdiction\u27s new normal by exploring the jurisdictional triskelion-three interconnected bases of general jurisdiction united by a core underlying policy. While the state of incorporation and principal place of business form the first two bases, this Article suggests that the third basis, now designated only as unique circumstances, should be defined by fora in which the corporation maintains (1) a physical office, (2) employees, and (3) corporate decision makers or executives. These considerations have long appeared in the Court\u27s jurisprudence on general jurisdiction and have the added benefit of being easy to ascertain without significant resource expenditure. Further, defining the third basis in this way lends clarity to the purpose and policy of general jurisdiction. While the Court has never addressed what policy supports the exercise of general jurisdiction, the Daimler Court noted that principles of general jurisdiction stem from traditional conceptions of jurisdictional power. Since pre-International Shoe personal jurisdiction was rooted in the link between sovereign states and their citizens, the three modern bases of general jurisdiction must now emanate from state citizenship. This Article suggests that a corporation should be considered a citizen in fora that help it further its own corporate existence and overarching directives. The state of incorporation, the principal place of business, and fora, where there is an office, employees, and executives in the state, all illustrate this policy-they all promote the corporation\u27s direction and control of its own existence. Accordingly, all three bases are paradigmatic of general jurisdiction and emanate from a core policy rooted in state sovereignty. Re-conceptualizing general jurisdiction in this way not only clarifies the at home standard adopted in Daimler, but clearly establishes the situations in which an exercise of dispute-blind jurisdiction will comport with due process standards

Arbitrary and Capricious x Artificial Intelligence

The arbitrary and capricious review standard has been interpreted to govern the judicial review of agency factual findings that are produced through informal rulemaking or informal adjudication. In contrast, agency factual findings that are produced through formal rulemaking or adjudication will be reviewed under the Administrative Procedure Act, Section 706(2)(E), which states that such findings can be set aside if they are unsupported by substantial evidence. While the standards technically vary-factual findings that are the product of informal procedures will warrant arbitrary and capricious review, while factual findings that are the product of formal procedures will warrant substantial evidence review most courts consider the standards to have converged, and for there to be little difference in what is analytically required between the two. As such, for ease of discussion, this paper will focus on the arbitrary and capricious standard, but with the contextual background that a similar analytical approach is employed for the substantial evidence standard