The Supreme Court, CAFA, and \u3cem\u3eParens Patriae\u3c/em\u3e Actions: Will it be Principles or Biases?

The Supreme Court will hear a case during its 2013-2014 term that will test the principles of both its conservative and liberal wings. In Mississippi ex rel. Hood v. AU Optronics Corp., Justices from each wing of the Court will be forced to choose between the modes of statutory interpretation they usually have favored in the past and their previously displayed pro-business or anti-business predispositions. The issue is whether the defendant-manufacturers can remove an action brought by a state attorney general suing as parens patriae to federal court. Beginning with their actions against tobacco manufacturers in the mid-1990s, state attorneys general often sued as parens patriae in litigation of nationwide significance. In Hood, the Supreme Court considers whether mass plaintiffs’ attorneys, by partnering with state attorneys general in parens patriae actions, will be able to circumvent the requirements of the Class Action Fairness Act that allow defendants to remove class actions and other forms of mass actions to the typically more defendant-friendly confines of federal courts. Resolution will turn on the Court’s interpretation of the statutory term “mass action.” A textualist interpretation, usually favored by Justice Scalia and his conservative colleagues, would not allow such removal—a decidedly anti-business result. At the same time, a purposive approach to interpreting the statutory provision, promoted by Justice Breyer, possibly would allow such removal. For each group of Justices, the conflict is clear: Will they follow their previously articulated principles of statutory interpretation or their ideological biases

From Lord Coke to Internet Privacy: The Past, Present, and Future of Electronic Contracting

Contract law is applied countless times every day, in every manner of transaction large or small. Rarely are those transactions reflected in an agreement produced by a lawyer; quite the contrary, almost all contracts are concluded by persons with no legal training and often by persons who do not have a great deal of education. In recent years, moreover, technological advances have provided novel methods of creating contracts. Those facts present practitioners of contract law with an interesting conundrum: The law must be sensible and stable if parties are to have confidence in the security of their arrangements; but contract law also must be able to handle changing social and economic circumstances, changes that occur at an ever-increasing speed. Contract law, originally designed to handle agreements reached by persons familiar with one another, evolved over time to solve the problems posed by contract formation that was done at a distance — that is, contract law had developed to handle first paper, then telegraphic, and finally telephonic communications. It has handled those changes very well. In the 1990s, however, things began to change. The rise in computer use by individuals coupled with the advent of the World Wide Web gave rise to two parallel developments, both of which challenged the law of contract formation. Increased computer use created a demand for software programs designed for the consumer market, and those programs were commonly transferred to users by way of standard-form licenses that were packaged with the software and thus unavailable before the consumer paid for the software. Also, parties in large numbers began to use electronic means — the computer — to enter into bargained-for relationships. The turn of the millennium brought two electronic contracting statutes, the Electronic Signatures in Global and National Commerce Act (“E-Sign”) and the Uniform Electronic Transactions Act (“UETA”), which removed any doubts that contracts entered into electronically could satisfy the Statute of Frauds. Encouraged by the certainty given by those statutes, internet businesses started offering contract terms on their websites, asking customers to consent to terms by clicking an icon, or by not seeking express assent at all by presenting terms of use by hyperlink. The ease of presenting terms comprised of thousands of words by an internet hyperlink makes it easy for a vendor in its terms of use and terms of service to ask us to give up privacy rights and intellectual property rights. Modern communications technologies therefore make it easier for parties to engage in risky transactions. Nevertheless, we believe that, with few exceptions, the common law of contracts is sufficiently malleable to address the problems arising out of that behavior and where it is not, regulation of contract terms is appropriate. This Article examines those developments

Annual Research Briefs, 1987

Lagrangian techniques have found widespread application to the prediction and understanding of turbulent transport phenomena and have yielded satisfactory results for different cases of shear flow problems. However, it must be kept in mind that in most experiments what is really available are Eulerian statistics, and it is far from obvious how to extract from them the information relevant to the Lagrangian behavior of the flow; in consequence, Lagrangian models still include some hypothesis for which no adequate supporting evidence was until now available. Direct numerical simulation of turbulence offers a new way to obtain Lagrangian statistics and so verify the validity of the current predictive models and the accuracy of their results. After the pioneering work of Riley (Riley and Patterson, 1974) in the 70's, some such results have just appeared in the literature (Lee et al, Yeung and Pope). The present contribution follows in part similar lines, but focuses on two particle statistics and comparison with existing models

Poetry as Metaphor in\u3ci\u3eThe Lord of the Rings\u3c/i\u3e

Close examination of the three versions of the Walking Song in The Lord of the Rings that shows how it captures the themes of the book in miniature. The metaphors “encapsulate the same view of history and man’s role in it that he conveys through the larger metaphor of the trilogy itself.

A Case Study in the Superiority of the Purposive Approach to Statutory Interpretation: \u3cem\u3e Bruesewitz v. Wyeth \u3c/em\u3e

This Article uses the Supreme Court’s 2011 decision in Bruesewitz v. Wyeth to examine the textualist or “plain meaning” approach to statutory interpretation. For more than a quarter-century, Justice Scalia has successfully promoted textualism, usually associated with conservatism, among his colleagues. In Bruesewitz, Scalia, writing for the majority, and his liberal colleague Justice Sotomayer, in dissent, both employed textualism to determine if the plaintiffs, whose child was allegedly harmed by a vaccine, could pursue common-law tort claims or whether their remedies were limited to those available under the no-fault compensation system established by the National Childhood Vaccine Injury Act. Despite these Justices’ common approach to statutory interpretation, they reached diametrically opposite conclusions in opinions that dissected the statutory language and quarreled over the meaning of “even though” and “if” clauses. In contrast, Justice Breyer employed a purposive or “purposes and objectives” approach to statutory interpretation. Rather than obsessing over the meaning of each and every phrase, Breyer looked at Congress’s goals in passing the Act. He recognized that Scalia’s conclusion was correct, not because of the supposedly “plain” meaning of specific language, but because this interpretation was the only one that enabled the alternative compensation system to function as Congress envisioned. Other scholars have analyzed Bruesewitz as a preemption case, but despite statutory interpretation’s inherently decisive role in express preemption cases, this is the first Article to highlight Bruesewitz as an illustration of the emptiness of textualism

What Happens When Parties Fail to Prove Foreign Law?

The first discussion in this excellent and provoking Symposium concerns the effect of a party\u27s failure to prove the content of foreign law. That discussion epitomizes much of what is wrong in academic thought about choice of law today. The Symposium colloquy focused on Walton v. Arabian American Oil Co. The issue in that case was whether an employer could be held liable under respondeat superior for an automobile accident in Saudi Arabia. Neither side offered or attempted to prove the content of Saudi law. Plaintiff instead obstinately rested his case on New York law. The trial judge, however, refused to take judicial notice of Saudi law and directed a verdict for defendant. The Second Circuit affirmed. That decision would be inexplicable if rendered today. It ignores the language of Federal Rule of Civil Procedure 44.1. Worse, it ignores litigation realities and common practice. There is no constitutional or practical objection to the application of New York law to the Walton plaintiff\u27s case. Accordingly, the enthusiasm shown by several of the Symposium participants for the result in Walton can only be explained by the over-fondness for conceptualization that I believe mars contemporary academic discussion of choice of law