Ruth Bader Ginsburg and Sensible Pragmatism in Federal Jurisdictional Policy

This article, written as part of a symposium celebrating the work of Justice Ruth Bader Ginsburg on the occasion of her fifteenth year on the Supreme Court, examines the strain of sensible legal pragmatism that informs Justice Ginsburg\u27s writing in the fields of Civil Procedure and Federal Jurisdiction. Taking as its point of departure the Supreme Court\u27s decision in City of Chicago v. International College of Surgeons, in which Ginsburg dissented, the article develops an argument against strict textualism in federal jurisdictional analysis. In its place, the article urges a purposive mode of interpretation that approaches jurisdictional text with a presumption in favor of respecting and preserving stable institutional arrangements unless Congress\u27s purpose in altering those arrangements is clear - an analytical mode that Justice Ginsburg\u27s work exemplifies

Multiple Attempts at Class Certification

The phenomenon of multiple attempts at class certification -- when class counsel file the same putative class action in multiple successive courts and attempt to secure an order of certification despite previous denials of the same request -- has always presented a vexing analytical puzzle. When the Supreme Court rejected one proposed solution to that problem in Smith v. Bayer, it left unresolved some of the broader questions of preclusion doctrine, federal common law, and the constraints of due process with which any satisfying approach will have to grapple. This essay was solicited as a reply to a recent article by Professor Martin Redish and Megan Kiernan. Redish and Kiernan propose a novel but unsuccessful solution to the multiple certification problem. Sorting through the problems in their Article provides a useful occasion for mapping out the shape of the multiple certification issue and the analytical terrain that any workable solution will have to navigate

Managerial Judging and Substantive Law

The figure of the proactive jurist, involved in case management from the outset of the litigation and attentive throughout the proceedings to the impact of her decisions on settlement dynamics -- a managerial judge -- has displaced the passive umpire as the dominant paradigm in the federal district courts. Thus far, discussions of managerial judging have focused primarily upon values endogenous to the practice of judging. Procedural scholarship has paid little attention to the impact of the underlying substantive law on the parameters and conduct of complex proceedings.In this Article, I examine the interface between substantive law and managerial judging. The Article sets forth a mode of analysis that grounds the powers of district judges in a richer account of the role that substantive legal policy can and should play in defining those powers, using three current or recent disputes as points of reference: the ruling of the Supreme Court of the United States on class certification and Title VII in Walmart v. Dukes; the 9/11 first responders litigation overseen by Judge Alvin Hellerstein in the Southern District of New York; and the joinder disputes surrounding the swarm download copyright cases that are now being filed in district courts around the country

Managerial Judging and Substantive Law

In this Article, I examine the interface between substantive law and managerial judging. My aim is not to criticize the dominant strain of current scholarship, with its focus on endogenous values in the practice of judging. That work has posed important questions that have properly captured the attention of Academy, Bar and Bench. It is rather to ground that ongoing discussion in a richer account of the role that substantive legal policy can and should play in defining the role of the judge, constraining judicial options in some cases, and legitimizing judicial initiative in others

Marriage Equality, the Supreme Court, and What’s Next (with transcript)

Prof. Tobias Barrington Wolff examines the historic ruling by a divided 5-to-4 Supreme Court that same-sex couples nationwide have the Constitutional right to marry, and its consequences

Discretion in Class Certification

A district court has broad discretion in deciding whether a suit may be maintained as a class action. Variations on this phrase populate the class action jurisprudence of the federal courts. The power of the federal courts to exercise discretion when deciding whether to permit a suit to proceed as a class action has long been treated as an elemental component of a representative proceeding. It is therefore cause for surprise that there is no broad consensus regarding the nature and definition of this judicial discretion in the certification process. The federal courts have not coalesced around a clear or thorough exposition of the question, and the scholarly literature has not provided a sustained analytical treatment. This article undertakes to provide that treatment. The recent decision of the Supreme Court in Shady Grove Orthopedic Associates v. Allstate Insurance Co. makes the need for a systematic examination of these matters more salient. In one of the few passages that garnered a majority of an otherwise fractured opinion, the Court used language that could be read to deprive district courts of any discretion when deciding whether certification is appropriate in a given case -- a holding that would upend forty-five years of practice under modern Rule 23. Such a ruling would be revolutionary, and a careful examination of the majority’s discussion of Rule 23 in Shady Grove makes clear that the ruling calls for no such revolution

Discretion in Class Certification

A district court has broad discretion in deciding whether a suit may be maintained as a class action. Variations on this phrase populate the class action jurisprudence of the federal courts. The power of the federal courts to exercise discretion when deciding whether to permit a suit to proceed as a class action has long been treated as an elemental component of a representative proceeding. It is therefore cause for surprise that there is no broad consensus regarding the nature and definition of this judicial discretion in the certification process. The federal courts have not coalesced around a clear or thorough exposition of the question, and the scholarly literature has not provided a sustained analytical treatment. This article undertakes to provide that treatment. The recent decision of the Supreme Court in Shady Grove Orthopedic Associates v. Allstate Insurance Co. makes the need for a systematic examination of these matters more salient. In one of the few passages that garnered a majority of an otherwise fractured opinion, the Court used language that could be read to deprive district courts of any discretion when deciding whether certification is appropriate in a given case -- a holding that would upend forty-five years of practice under modern Rule 23. Such a ruling would be revolutionary, and a careful examination of the majority’s discussion of Rule 23 in Shady Grove makes clear that the ruling calls for no such revolution

Remembering Ed Baker

This is a short biographical piece honoring and describing deceased colleague C. Edwin Baker

Civil Rights Reform and the Body

Discrimination on the basis of gender identity or expression has emerged as a major focus of civil rights reform. Opponents of these reforms have structured their opposition around one dominant image: the bathroom. With striking consistency, opponents have invoked anxiety over the bathroom -- who uses bathrooms, what happens in bathrooms, and what traumas one might experience while occupying a bathroom -- as the reason to permit discrimination in the workplace, housing, and places of public accommodation. This rhetoric of the bathroom in the debate over gender-identity protections seeks to exploit an underlying anxiety that has played a role in many efforts at civil rights reform: anxiety over the body. This article makes a first attempt to identify and analyze the role of anxiety over the body in civil rights reform, using as its primary point of reference the obsessive focus on bathrooms that antagonists exhibit in seeking to justify discrimination on the basis of gender identity and expression. It begins by exploring the mode of subordination that characterizes much anti-LGBT discrimination and examining the particular forms of anxiety over the body that are deployed against the civil rights of transgender people. The article then analyzes how resistance to reform in other areas of discrimination has been structured around the exploitation of anxiety around the body, situating anti-transgender discrimination in that broader civil rights history