Primary Jurisdiction and the Limits of Measurement in Mass Litigation

This Article examines the use of primary jurisdiction through the lens of institutional economics and the ongoing revolution in pre-suit, plaintiff-side testing in mass litigation. In this setting, primary jurisdiction serves a necessary pro-agency institutional role. The ability of plaintiffs’ attorneys to easily generate sophisticated laboratory testing results has allowed them to create a quasi-regulatory quality-control regime for defendants’ products and extract value from it through enhanced settlements. This offers defendants the burdens of regulation without the benefits of uniformity or policymakers with subject-matter expertise and capacity for public input. Primary jurisdiction enables defendants in mass litigation to move these quasi-regulatory actions back to regulatory settings, where the potential for efficient quality-control standards increases with agency expertise. Shifting decision-making in testing-based actions to agencies then preserves this value from conversion into litigation-based transaction costs. As scientific resolving power and the scope of potentially measurable harm evolve, primary jurisdiction thus functions as a central balancing mechanism allowing corresponding evolution in adjudication

Food Forensics in Class Action Litigation: The Race Between Pleading Standards and Technology

This Article examines the emerging use of “food forensics” to discover injury in class action litigation. Based on increased public interest in what goes inside food, plaintiffs are beginning to rely on statistical and chemical testing to verify label claims. The test results often spur producers to re-examine their products, but can also raise plausibility concerns under the veneer of science and deny consumers data they need to make informed decisions about food. Drawing on examples ranging from olive oil to multivitamins and canned octopus to pet food, I show how product testing in litigation represents a race between the resolving power of test results and slower-moving interpretation of pleading standards. I then propose a framework for navigating testing claims based on traditional case screening tools and statistical principles

Should Code Be Law?: Smart Contracts, Blockchain, and Boilerplate

Smart contracts...guarantee a very specific set of outcomes. There\u27s never any confusion and there\u27s never any need for litigation. ~JeffGarzik If the blockchain promise comes to a reality...most goods, labor and capital will be allocated through decentralized global platforms. Disputes will certainly arise. ~ Clément Lesaege and Federico Ast Blockchain-based smart contracts may characterize much of the future of exchange as they expand the scope of potentially efficient bargains through restructuring and reducing transaction costs relative to traditional contracts. This Article analyzes the changes in transaction costs and execution efficiencies as contractual distance -the number of intermediaries required to make an exchange, weighted by the rational level of actual agreement between parties-increases between bespoke contracts, template contracts, contracts of adhesion, and algorithmic contracts housed on platforms like Ethereum and arbitrated on platforms such as Kleros. This framework shows that smart contracts have the potential to lower the contractual distance required to make an exchange by (1) overcoming trust issues that require intermediaries, (2) lowering the incentive to write certain kinds of boilerplate, and (3) increasing the incentive to understand contractual terms. As a result, wide implementation of smart contracts may return contract law closer to the legal ideal of mutual understanding as the basis for exchange. At the same time, these auto-executing agreements risk making the future of contract law a return to the era of sealed instruments, enforcing themselves regardless of impossibility, fraud, and other legal safeguards. As examples of these costs and benefits, the Article focuses on smart contracts in two industries: the environmental public goods sector and the film industry. These industries illustrate the potential for smart contracts as well as steps that can be taken to ensure that as code becomes law, it will retain the doctrinal wisdom applied to contracts before they became smart

Fraudulent Aggregation: The Effect of Daimler and Walden on Mass Litigation

This Article examines the effect of the U.S. Supreme Court’s jurisdictional tightening in Daimler and Walden on mass litigation. This Article shows how the Supreme Court’s changes to general and specific jurisdiction, considered together, end the practice of tactically allocating non-diverse plaintiffs across state lines to defeat diversity jurisdiction in nationwide litigation, a doctrine this Article terms fraudulent aggregation. This Article places the doctrine of fraudulent aggregation in the context of fraudulent joinder, the emerging doctrine of fraudulent misjoinder, and other attempts to avoid federal court jurisdiction through artful pleading. Examples from recent products liability litigation show both the application of the doctrine and the challenges facing its adoption—chiefly whether lower courts attempt to recreate general jurisdiction under the guise of expanded specific jurisdiction

A Thousand Views of the Cathedral: The Law, Politics, and Statistics of Pandemic Dashboards

This Article explores the law, politics, and statistics of communicating data through the thousands of state, county, school district, and higher-education dashboards created in response to the COVID-19 global pandemic. Using a nationally distributed questionnaire and series of interviews with dashboard managers and stakeholders, we offer a wide-ranging view of data visualization practice in response to COVID-19. We pair this evidence with a survey of almost 3,000 entities responsible for public health communication, which resulted in collection of over 1,100 COVID-19 dashboards from a spectrum of government actors and private parties. We evaluate how legal issues were perceived and acted on, how data were politicized, and what technical challenges dashboard creators faced. We examine factors that led to creation of dashboards along with theory that explores the cognitive perception of dashboard elements. We explore the role of resources, and how those interplayed with specific software choices. We also examine the effect of local characteristics on dashboard creation, such as the presence of a county dashboard on data communication from local schools, the role of broadband access, technical occupations in the area, and so on. We conclude by suggesting a series of policies and practices that can be implemented to prepare for future data-based communication in a future public health crisis. These include practices to prepare for data visualization, enhanced resources devoted to public health communication, and the management of legal and political issues surrounding publicizing health information

ACorporation, Inc.: Corporate Form as Art Project and Advocacy

Development of the corporation was a key turning point in the institutional history of business. The concepts of life beyond the existence of its founders, limited liability, and the ability to accumulate massive amounts of capital through stock ownership changed the nature of commercial practice in the United States and around the world. This has not been without controversy, particularly as large corporations began to capture much of modern economic life. Great economic power has not always meant great responsibility, and concepts of corporate citizenship and legal “personhood” remain subjects of debate. Similarly, how corporations do, or ought to, navigate social responsibility is the subject of an extensive literature, both from legal scholars and business ethicists. This literature considers such diverse topics as the role of commons thinking in corporate governance, reporting on social responsibility issues, the interplay between economic theory and legal duties within the corporation, and so on. Yet, perhaps unsurprisingly, one area has not been the subject of significant study: the potential for responsible business advocacy through the corporate form as art

SKELETONS IN THE DATABASE: AN EARLY ANALYSIS OF THE CFPB\u27S CONSUMER COMPLAINTS

Analyzing a new dataset of 110,000 consumer complaints lodged with the Consumer Financial Protection Bureau (the CFPB or the Bureau ), the authors find that: (i) Bank of America, Citibank, and PNC Bank were significantly less timely in responding to consumer complaints than the average financial institution; (ii) consumers of some of the largest financial services providers, including Wells Fargo, American Express ( Amex ), and Bank of America, were significantly more likely than the average consumer to dispute the provider\u27s response to their initial complaints; and (iii) among the companies included in the database that provide mortgages, OneWest Bank, HSBC, Nationstar Mortgage, and Bank of America all received more mortgage complaints relative to mortgages sold than other mortgage providers. In addition, regression analysis suggests that consumer financial companies respond differently to complaints, depending on the type of product and issues involved, thereby generating significant differences in the timeliness of responses and whether consumers dispute those responses. Moreover, demographics matter: mortgage complaints per mortgage significantly increased in ZIP codes with larger proportions of certain populations, including Blacks and Hispanics. Companies were also less timely, and more likely to have their responses disputed, in areas with higher concentrations of senior citizens and college students, groups on which the CFPB is mandated to focus

An Economic History of Compulsory Attendance and Child Labor Laws in the United States, 1810-1926

Public Policy and Managemen