Showing papers in "Notre Dame Law Review in 1998"

Class Actions: The Class as Party and Client

Abstract: This article, which focuses on plaintiff class actions involving mass torts, posits two models for analyzing and evaluating class actions: (1) an "aggregation" model that recognizes the value of joining forces in a plaintiff class but also attempts to retain as much individual autonomy and control as possible in the prosecution of the action, and (2)an "entity" model, which regards the class itself as the litigant and the client. While recognizing that neither of these models is fully descriptive of actual class actions as they have evolved, the article argues for adoption of the entity model on a number of substantive and procedural grounds. The article then considers a range of practical consequences that would flow from adoption of the entity model. These consequences include the grounds for certifying all or part of a dispute as appropriate for class treatment; the scope of the right to notice and to opt out of the class; questions of the relations among the class, its members, and the attorneys representing the class; the proper role of the judge; and the applicable rules of substantive law. On an institutional level, the article considers the implications of the entity model with respect to the allocation of authority between the federal government and the states, to the choice between adjudication and rulemaking as techniques of law declaration, and to the choice between between courts and legislatures as appropriate rulemakers.

On the Practical Meaning of Secularism

Abstract: formulation of the more well-known statement that one should love and respect one's neighbor as oneself. High-level moral principles such as the Golden Rule or the principle forbidding intentional infliction of harms are, then, specifications (themselves in many cases further specifiable) of that primary or master moral principle; they identify forms of willing incompatible with a steady and undeflected will for integral human fulfilment. So the directiveness of the first principles is both rationally motivating (contra Hume and Kant), and morally restraining (as well as spurring on). Thus one finds oneself being directed, as a matter of intelligence and reason. In this sense, the first practical principles, though not innate prior to all experience, have the status of givens"given to" and grasped in our understanding. Both in their directiveness and their "self-evidence" as knowable without deduction from higher premises, these principles have a kind of necessity. But as the propositional content of the acts of insight by which one comes to understand these opportunities and reasons for action (and of one's consequent habitual knowledge), the first practical principles-and likewise the master moral principle (with its specifications in less abstract moral principles) -are like all the other realities within our experience. For those acts of insight (understanding) are the actuation of a potentiality, and contingent on something which explains that change from potentiality to act(uality). So, like every reality which we can think of as what it is without knowing that it is, the practical principles have an actuality which calls for explanation, and that explanation can only be a reality whose what-it-is includes that it is, and so is without shadow of mere potentiality or of change from possibility to act(uality).14 And since the first practical principles not only are but are directive, and their directiveness cannot be explained by anything subhuman or by any human originating, it is also reasonable to conclude that the ultimate explanation or first cause which accounts for their being also accounts, of itself, for their directiveness. This inference is not to be confused with the contention of Kant's posthumous papers, or ofJohn Henry Newman, that the commanding voice of, or in, one's conscience requires one to conclude to a transcendent commander. Kant and Newman were heirs to a long tradition of voluntarist misunderstanding of directiveness and "ought" as ultimately a matter of commands or imperatives. In truth, first practical principles direct us to intelligent acts of will intending human flourishing. So we must 14 See GRIuN GRisEz, BEYOND Tm NEv THEisM: A PHILOSOPHY OF RELIGION 36-91 (1975); JoHN FINNIs, NATURAL LAW & NATURAL RIGHTs 378-88 (1980); JOHN FINNIS, AQuINAs ch. X (1998). 1998] NOTRE DAME LAW REVIEW take the first cause of their directiveness to be a non-human intelligence and will-we can only say, person-directing us thus towards our own goods, towards human fulfilment. An argument to the existence of God from the data of practical reason converges, of course, with the more familiar arguments from other realities in which change and contingency are more evident. The conclusion on which all converge with a rational necessity15 is that everything within our experience, including every form of intelligibility which (like the first practical principles) is prior to human willing, has as its ultimate explanation the still active action of divine creation. Here I should recall the warning of St. Thomas, taken up with full seriousness in Germain Grisez's restatement of the philosophy of God. We can have no understanding of what a being is in which what it is includes that it is. So "we cannot know what God is, but only what God is not"16 "and how other things are related to God. ' 17 Whatever we say about God must be taken with a drastic shift of meaning leaving nothing but what must be predicated of God to explain the very existence and character of the realities within our experience. But clearly we must predicate of God this act(ion) of Creation as the projection of immense structures and patterns of intelligibility, structures and patterns whose intelligibility still far outreaches natural and mathematical sciences dedicated to disclosing it. We must take divine creation to be somehow an act which carries out an intention. And it is an act which cannot have been necessitated. Being free from every trace of potentiality, lack, imperfection, or need, the Creator must be of a perfection that cannot conceivably be enhanced. So the creating of a universe-this or any other-could not be required, by any reason whatever. So the intention to create and sustain our universe must be somehow the adoption of a proposal by truly unnecessitated, free choice. Plato's Laws insists, and sketches a demonstration, that mind is the primary explanation of the cosmos. This argument is resumed in Aquinas' "fifth way," and in the vindication of God's existence in John Haldane's recent dialectic with JJ.C. Smart18-a resumption deepened by Christian philosophy's clarity about Creation: the primary explanation of the cosmos involves both 15 This is a mattei not of logical necessity, but of requirements of rationality in seeking explanatory knowledge ("rationality norms"). See GRISEz, NEW THEISM, supra note 14, at 132-36, 168-72; FINNis, HisroRIcAL CONSCIOUSNESS, supra note 13, at

Informed Consent in Mediation: A Guiding Principle for Truly Educated Decisionmaking

Abstract: This Article seeks to promote critical, reflective examination of the principle of informed consent in mediation and to give content to that principle. It argues that a theory of informed consent for mediation should focus on the parties' acts of decisionmaking throughout the mediation process. Parties, particularly those who are unrepresented by lawyers, need to understand what it means to participate voluntarily in mediation, how the consent process operates, and what it means to reach an agreement. They need to understand that a decision to settle through mediation may result in a waiver of legal rights and remedies. More attention must be paid to the disparate circumstances, locations, and human conditions under which mediation occurs. Parties come to mediation in courts, public agencies, community dispute centers, and private providers' offices with varying degrees of voluntariness and legal representation. The range of mediation consumers extends from sophisticated, repeat players to illiterate, unrepresented parties. A sustained informed consent theory in mediation should differentiate disclosure and consent requirements based on these disparate factors and human conditions. This requires an understanding, not just of the substance of the principle of informed consent, but of the practices that foster it in all the settings in which mediation occurs. Thus, this Article proposes a contextualized approach to informed consent with a sliding-scale model of disclosures. The amount and kind of information disclosed depends upon the location of the mediation, the voluntariness of the parties' consent, and the parties' representational status. Unrepresented parties need more disclosure than parties who have lawyers and when courts require unrepresented parties to mediate, fairness demands that they have a basic knowledge of their legal rights.

Affirmative Action and Texas' Ten Percent Solution: Improving Diversity and Quality

Abstract: As the federal courts become increasingly hostile to traditional affirmative action programs in higher education, it appears that racial diversity at colleges and universities will suffer. Indeed, in the wake of Hopwood v. Texas' in the U.S. Court of Appeals for the Fifth Circuit, minority enrollment at the University of Texas School of Law declined dramatically. Progress toward a more integrated society may not only be slowed but even reversed. This conservative shift in public policy may have a surprisingly radical effect, however. As universities in Texas and other states search for legally acceptable alternatives to the rejected affirmative action programs, they may end up with approaches that are less effective at promoting racial diversity in the short run but that may prove equally effective in the long run. By generating unexpected benefits for another critical problem in the United States -- the poor quality of many primary and secondary public schools -- the alternative approaches may do as much as traditional affirmative action programs to overcome some of the causes for lower academic achievement by minorities. In this article, I focus on one alternative approach that holds considerable promise. In 1997, the Texas legislature ordered each of the state's public undergraduate institutions to admit all applicants whose grade point averages were in the top ten percent of their high school's graduating class. This strategy has been touted for its ability to encourage minority enrollment from high schools that have an overwhelmingly minority student body. What has gone unnoticed is the fact that the approach may do much to improve the public primary and secondary schools by altering incentives for school quality. Current incentives encourage politically influential parents of school-age children to prefer a two-tiered educational system in which their children attend the stronger schools and the children of politically weak parents attend the poorer schools. Under the Texas approach, parents have less to gain from concentrating their children at stronger schools and more to gain from dispersing their children over a larger number of schools. Accordingly, Texas' ten percent policy may lead to a public school system with smaller disparities in quality from school to school.