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

The Death of the Common Law: Judicial Abdication and Contributory Negligence in Maryland

The issue of how to handle a victim’s own contributory negligence that combines with the negligence of a tortfeasor in causing harm is one of the most important, if not the most important, issue in all of tort law. Forty-six states now apply some version of comparative fault that holds the defendant liable for its negligence even when the plaintiff is also careless, but reduces the award in proportion to the plaintiff’s degree of fault when compared with that of the defendant. In contrast, the Maryland Court of Appeals in Coleman v. Soccer Association of Columbia recently refused again to overturn the antiquated, judge-made doctrine of contributory negligence that totally bars plaintiff’s recovery. A majority of the court’s members explicitly acknowledged that comparative fault is both “more equitable” and “more socially desirable” than contributory negligence. It also parroted the conclusion that it had the authority to overturn outmoded doctrines and praised the “dynamism” of the common law. However, the court refused to overturn contributory negligence because the legislature had repeatedly failed to do so. In this article, I critique the court’s opinion, its own understanding of its role as the state’s highest common law court, and its treatment of the legislature’s failure to modify the common law. I conclude that the court misunderstood its role and abdicated its judicial responsibility