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

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

Luther Martin, Maryland and the Constitution

Reviews the life and contributions of Maryland lawyer and scholar Luther Martin (1748-1826)

Back to the Future in Law Schools

This paper first argues for the maintenance of the traditional first-year curriculum. It does so in the context of an examination of what most lawyers do in practice and, therefore, what most lawyers should know. This portion includes a defense of the Socratic Method. The paper then addresses contemporary concerns about legal education, including the devaluation of courses in the private law curriculum, and considers why legal academics are not interested in private law