Showing papers in "Notre Dame Law Review in 2012"

Against Notice Skepticism in Privacy (and Elsewhere)

Abstract: INTRODUCTION What follows is an exploration of innovative new ways to deliver privacy notice. Unlike traditional notice that relies upon text or symbols to convey information, emerging strategies of "visceral" notice leverage a consumer's very experience of a product or service to warn or inform. A regulation might require that a cell phone camera make a shutter sound so people know their photo is being taken. (1) Or a law could incentivize websites to be more formal (as opposed to casual) wherever they collect personal information, as formality tends to place people on greater guard about what they disclose. (2) The thesis of this Article is that, for a variety of reasons, experience as a form of privacy disclosure is worthy of further study before we give in to calls to abandon notice as a regulatory strategy in privacy and elsewhere. The requirement to provide notice is a very common method of regulation. (3) Notice mandates arise in everything from criminal procedure to financial regulation. (4) Although "ignorance of the law is no defense," (5) there is a sense in which notice underpins law's basic legitimacy--as alluded to by Lon Fuller's inclusion of notice in law's "internal morality" (6) or Friedrich von Hayek's distinction between arbitrariness and the rule of law. (7) In the context of digital privacy, notice is among the only affirmative obligations websites face. California law and federally-recognized best practices require that a company offering an online service link to a privacy policy. (8) The basic mechanism behind the requirement is that consumers read and compare privacy policies in order to decide what services to use and otherwise exercise choices with respect to their information. (9) These decisions are to police the market by rewarding good practices and penalizing bad ones. (10) Officials select notice in part because they fear the effect of so-called "command-and-control" regulations on innovation and competition, (11) a concern that appears particularly salient when it comes to digital technology. (12) Thus, for instance, a ban on storing Internet search queries in the name of privacy may interfere with the development of useful services that rely on long-term searching trends. (13) Officials also perceive notice to be cheaper, easier to enforce, and more politically palatable than restrictions on the flow of data. (14) And they recognize that consumer preferences are heterogeneous, such that setting a floor for privacy in advance may prove difficult or arbitrary. Mandatory notice is understandably popular, but it is also controversial. Many criticize privacy notice as ineffective or worse. (15) These skeptics point out that few consumers read privacy policies and fewer understand them, and hence never become informed decision makers capable of protecting themselves or policing the market. (16) If anything, consumers see the legally required words "privacy policy" and believe it means that the company has a "policy of privacy" and the consumer need not concern herself. (17) Some skeptics call for the abandonment of privacy notice entirely in favor of the same substantive regulation on conduct the notice requirement sought to avoid. (18) The result has been a standstill in online privacy law: regulators refuse to abandon notice as their primary regulatory mechanism despite growing evidence that existing consumer notices are ineffective. (19) Identifying a new generation of notice that may not be susceptible to the withering critiques commonly levied at traditional notice could lead to an important new regulatory tool in privacy and elsewhere. To be clear, this Article does not recommend any particular solution for the issue of online privacy. Rather, it argues against an extreme skepticism of mandatory notice--a highly popular but much maligned regulatory strategy--by questioning whether critics or proponents of notice have identified and tested all of the available notice strategies. …

The Federal Role in School Reform: Obama's Race to the Top

Abstract: INTRODUCTION I. ESEA AND THE EVOLVING FEDERAL ROLE II. NO CHILD LEFT BEHIND III. THE OBAMA AGENDA IV. ASSESSING RTT A. Testing and Standards B. Evaluating Teachers C. Turning Around Failing Schools D. Charters and Choice V. REVISITING NCLB CONCLUSION APPENDIX INTRODUCTION Given the level of discretionary funding that has been made available to him by Congress and the way he has chosen to exercise his administrative authority, Secretary of Education Arne Duncan is for all practical purposes the most powerful federal executive in the history of American education, pushing the boundaries of the federal/ state relationship to new limits. This essay provides a critical review of federal education policy enacted under President Barack Obama with a particular focus on the centerpiece Race to the Top initiative implemented by Secretary Duncan. It assesses the Obama policy in the context of the evolving federal role in education that began with the passage of the Elementary and Secondary Education Act (ESEA) of 1965 as an effort to improve educational opportunity for economically disadvantaged students. It argues that while the Obama agenda is a reasonable attempt to reshape educational policy (and particularly No Child Left Behind), contrary to what the administration claims, its approach to education policy is neither entirely research based nor apolitical, and the competitive nature of the funding may eventually prove to undermine the redistributive objectives of the original ESEA legislation. Part I of this essay traces the evolution of federal education policy. It will begin by examining the objectives and strategies originally enunciated by President Lyndon B. Johnson with the passage of the Elementary and Secondary Education Act of 1965. It will then explain how these goals changed over the years through the administration of President Bill Clinton, as the program became less concerned with directing resources to children who were economically disadvantaged and more concerned with accountability. Part II reviews the details of the No Child Left Behind (NCLB) legislation enacted during the administration of President George W. Bush, which established the political and programmatic context for policymaking during the Obama administration. Although this legislation was designed to impose accountability on states that accepted federal funding, it also highlighted the needs of children who were denied an opportunity for a decent education, a disproportionate number of whom were economically disadvantaged children of color. Part III scopes out the broad outlines of the Obama education agenda, while Part IV assesses the main provisions of the Race to the Top (RTT) initiative. Particular attention is given in the latter to those provisions that pertain to testing and standards, teacher evaluation, turnaround strategies for failing schools, and charters and choice. Part V describes how Secretary of Education Arne Duncan used his administrative discretion to make No Child Left Behind more consistent with the objectives of Race to the Top. Part VI serves as a conclusion. I. ESEA AND THE EVOLVING FEDERAL ROLE The Elementary and Secondary Education Act (ESEA) that President Lyndon Johnson managed to push through Congress in 1965 was a historical breakthrough in a country that had traditionally considered education a state and local function. The initial appropriation of $1 billion in funding was doubled in 1966, and by the end of the decade was up to $3 billion. (1) Under Title I, the major provision of the law, funds were specifically to be appropriated to communities on the basis of economic need. The legislation read: In recognition of the special educational needs of children of low-income families and the impact that concentrations of low-income families have on the ability of local educational agencies to support adequate educational programs, the Congress hereby declares it to be the policy of the United States to provide financial assistance . …

An Economic Analysis of Civil versus Common Law Property

Abstract: III. COMMON LAW PROPERTY Although the common law shares with the civil law the basic exclusion-governance architecture, the common law employs a style that results in less of a focus on the "things" of property. The common law of property is not usually thought of as a law of things, and the bundle of rights picture has only brought things further out of the focus for property theorists. Much of the de-emphasis on things can be laid at the door of the estate system. One can say that whereas the land law in civil law systems is one of ownership, it is one of estate in the common law countries. (106) A. Focus on the Estate System to the Exclusion of Other Lesser Property Interests What is an estate? It is a piece of ownership. Originally, in the feudal system that William the Conqueror introduced into England after 1066 and Henry II reformed greatly, the King himself was the only full owner. (107) Out of full ownership were carved lesser legal interests: in return for rights to land, the tenant ("holder" of the interest) would be obligated to provide service to the lord. These services started out as military but were gradually supplanted by monetary obligations. (108) A tenant could turn around and subinfeudate all the way down to land holding peasants. The feudal obligations were abolished in 1660 with the Statute of Tenures, (109) bur the system of dividing property rights in the United States tracks the feudal system, with modifications. (The 1925 land reform legislation in England largely did away with the system of legal estates. (110)) Now the system of estates basically measures property interests by time (which includes conditions and limitations that can cause an interest to end). These days, interests are rarely carved up using the estate system directly. Instead, other than leases, interests less than fee simple absolute or full ownership are created in trust, a device tracing back to the activities of the courts of equity and the desire of feudal tenants to avoid certain monetary obligations. The conventional view of the trust is that it splits ownership into legal and equitable sides. (111) The trustee holds the legal title and therefore can deal with the property and, if there are no instructions to the contrary, can alienate the trust corpus, managing the corpus and its substitutes over time in a fashion consistent with fiduciary duties. The beneficiary holds equitable title, meaning that the fiduciary duties are owed to the beneficiary and that the beneficiary has the right to the proceeds of the corpus according to the terms of the trust when it was set up by the settlor. Also, if the trustee wrongfully alienates trust assets, the beneficiary can follow them into the hands of purchasers who had notice or did not give value. The flip side of the great attention to divisions by time and the extensive use of the trust is that the common law system does not regard as central to property a variety of other types of division. Security interests are a type of conditional property right that tends to be covered more in commercial law than in property courses. Even the status of leases as both contract and property has been cloaked in some confusion: leases give possessory rights and are somewhat standardized as to subtypes, but they are otherwise customizable. (112) And crucially while they "run" to successor landlords, they are avoidable in bankruptcy like contract rights. Likewise, bailments have not received much attention, despite being widespread, as in coat checks, parking, and the like. But again, bailments sit uncomfortably at the intersection of the in rem and the in personam. (113) B. Transaction Cost Explanations Our transaction cost theory of the common law has a practical and theoretical aspect. The common law of property is not as different from civil law as conventional wisdom would have it. In both systems the broad contours of the system and their basic architectural features are dictated by the overwhelming transaction cost savings of a property system featuring the structured relations and essential features discussed in Part II. …

Bringing the Market to Students: School Choice and Vocational Education in the Twenty-First Century

Abstract: [T]he very best service which any one can render to what is called the higher education is to teach the present generation to provide a material or industrial foundation. On such a foundation as this will grow habits of thrift, a love of work, economy, ownership of property, bank accounts. Out of it in the future will grow practical education, professional education, positions of public responsibility. Out of it will grow moral and religious strength. Out of it will grow wealth from which alone can come leisure and the opportunity for the enjoyment of literature and the fine arts. (1) INTRODUCTION Our national aspirations have long championed the value of education as the gateway to life opportunity. It is the avenue through which all Americans, regardless of their geographic, economic, or ethnic origins may have an opportunity for economic advancement. In truth, however, some may argue that scholars, practitioners, and policymakers face a lack of political will to critically examine and address persistent educational disparities in opportunity that further entrench employment and wealth stratification. Countess scholars and educational advocates have called for a major overhaul of our education systems, and indeed, in previous articles I have discussed the critical role that federal political branches play in shaping educational opportunity--alternately ameliorating and perpetuating deeply entrenched inequities. (2) It is abundantly clear, however, that no single educational policy suggestion will yield the kind of comprehensive, multidimensional solutions necessary to address the myriad ways in which geography, race, ethnicity, wealth, and income too often serve as determinants for access to quality education and thus life opportunity. We must also look to places of political will and practical expediency. One area that is ripe for analysis is the potential of "federally encouraged" educational innovations that may partially alleviate some of the intractable educational disparities that capture our collective consciousness. One such educational innovation that federal policy has alternately aided and hampered is the role of vocational education, more recently known as career and technical education, in expanding educational and employment opportunities. This form of skills-based learning has sustained criticism for creating or maintaining systems of educational and economic stratification. Yet, is it possible that if such programs were well conceived and structured for current academic and employment needs, they might be more effective in providing marketable skills to those students who might otherwise struggle to remain in the education system? If so, there may be some normative implications in examining the role of vocational education in shaping how we conceive of multi-layered responses to persistent educational disparities. This Essay suggests we may have a critical opportunity to improve the human social capital of the American workforce by reviving and reimagining vocational education that is designed to prepare students for today's global, knowledge-based economy. (3) A current focus on college preparedness alone "ignores the reality that most students will not immediately go to college, and will instead enter the workforce." (4) An examination of historic trends and current possibilities in vocational education may illuminate some of the ways in which long-standing vocational educational structures have negatively impacted the most vulnerable populations. Due to historic racial, ethnic, and income segmentation in American education, the most vulnerable students who historically have been underserved by vocational education may be better served by examining the historic failings and current possibilities. At the same time scholars, educators, and advocates have argued for increased focus on academic achievement, school choice mechanisms have gained prominence as effective tools to attain such goals. …

Regulatory Litigation in the European Union: Does the U.S. Class Action have a New Analogue

Abstract: The United States has long embraced the concept of regulatory litigation, whereby individual litigants, often termed "private attorneys general," are allowed to enforce certain public laws as a matter of institutional design. Although several types of regulatory litigation exist, the U.S. class action is often considered the paradigmatic model for this type of private regulation. For years, the United States appeared to be the sole proponent of both regulatory litigation and large-scale litigation. However, in February 2012, the European Union dramatically reversed its existing policies toward mass claims resolution when the European Parliament adopted a resolution proposing to create a coherent European approach to cross- border collective redress. Given certain conceptual similarities between cross-border collective redress and global class actions, the question logically arises as to whether the European Union is in the process of embracing a form of regulatory litigation. This issue is of great importance not only to European audiences who may have to recalibrate their thinking about what constitutes "regulation" within the European sphere, but also to American audiences who will have to consider how the new European procedures affect the ability of U.S. courts to bring European parties into global class actions. Although many of the issues may appear to be procedural in nature, the more interesting--and challenging--analyses arise as a matter of regulatory law. This Article is the first to consider the European resolution from a regulatory perspective, using a combination of new governance theory and equivalence functionalism to determine whether the European Union has adopted or is in the process of adopting a form of regulatory litigation. In so doing, the Article considers a number of issues, including the basic definition of regulatory litigation, how class and collective relief can act as a regulatory mechanism, and the special problems that arise when regulatory litigation is used in the transnational context. The Article also includes a normative element, providing a number of suggestions on how European authorities--who are still in the early stages of drafting the relevant procedures--can better achieve the regulatory and other objectives set forth in the resolution. Through these means, the Article makes a significant contribution not only to the domestic understanding of regulatory law, but also to the increasingly important field of transnational regulation. Audiences in both the United States and the European Union, as well as readers from other countries, can benefit greatly from this analysis. I. INTRODUCTION For decades, Europe and the United States have been characterized as representing opposite ends of the spectrum with regard to their approach to regulation. (1) The United States has traditionally been seen as embracing a mixed model of shared public-private authority, with individual litigants being permitted, if not encouraged, to act as "private attorneys general" and enforce various public laws in an otherwise highly deregulated market environment. (2) European nations, on the other hand, have been painted as preferring a more formal regulatory model that includes a large number of legislative and administrative enactments that deny both the need and opportunity for any sort of "private" regulation through litigation. (3) While these stereotypes may still exist in the popular mindset, "[c]omparative studies of developments in regulatory law and policy in Western states over the past three decades have shown a widespread movement away from a top-down approach in public governance to an increasingly hybrid interaction of public and private actors." (4) This is intriguing, not just from an academic perspective, but also as a practical matter, since it suggests that European nations may be adopting what could be seen as a more Americanized model of regulation. …

A Call to Reject the Neurological Standard in the Determination of Death and Abandon the Dead Donor Rule

Abstract: INTRODUCTION Advances in life-saving technologies coupled with the growing demand for solid organs have caused the medical community to challenge its traditional understanding of death. Today, most states have adopted the Uniform Determination of Death Act (UDDA), (1) which prescribes two criteria for determining death. The UDDA states that a person is dead when he or she "has sustained either (1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem." (2) The Act further specifies that the determination of death "must be made in accordance with accepted medical standards." (3) These two standards have become known as the cardiopulmonary standard and the neurological standard, respectively. But the standard for determining death was not always twofold. Prior to the second half of the twentieth century, people had long understood death according to the cardiopulmonary standard, that is, "when a person's heart and circulatory system have permanently and irreversibly ceased to function." (4) However, during the second half of the twentieth century, the advances in intensive care medicine and the growing demand for vital organs set the stage for the development of a new way of determining death. (5) Specifically, by the mid-1960s, medical technology had progressed to the point where ventilators could maintain heart and lung function in patients who had suffered devastating neurological injuries. (6) In addition, "the discovery of cyclosporine in 1978 is thought to have revolutionized the field of transplantation" by helping to prevent organ recipients from rejecting transplanted organs and markedly improving survival rates. (7) In 1968, Harvard Medical School created a physician-led committee to develop a new set of criteria for the determination of death. The committee's work paved the way for the neurological standard. (8) In a paper entitled, A Definition of Irreversible Coma, (9) the committee concluded that patients who meet the diagnostic criteria for a certain type of brain injury can be pronounced dead before their hearts stop beating. (10) Then in 1981, the President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research (Commission) proposed the language for the Uniform Determination of Death Act in Defining Death: Medical, Legal, and Ethical Issues in the Determination of Death. (11) The text accompanying the statute clarified the relationship between the two alternative standards: "in almost all cases of human death the traditional standard [cardiopulmonary standard] should be used, as it always ha[s] been," (12) and "[o]nly in rare cases in which mechanical ventilation is used to support the breathing of a severely brain-injured individual ... should a brain-based standard be employed." (13) However, today, most organs are recovered from donors who meet the neurological criterion24 The Commission's model statute was endorsed by the American Medical Association (AMA), the American Bar Association (ABA), and the National Conference of Commissioners on Uniform State Laws (NCCUSL). (15) The NCCUSL published the statute under the name "Uniform Determination of Death Act" and encouraged states to pass it. (16) The key section of the Act reads as follows: An individual who has sustained either (1) irreversible cessation of circulatory and respiratory functions, or (9) irreversible cessation of all functions of the entire brain, including the brain stem, is dead. A determination of death must be made in accordance with accepted medical standards. (17) Even though not all states have adopted the exact language of the UDDA, they all have some form of legal recognition for a neurological standard of death. (18) This Note argues that we should reject the neurological criterion and return to using only the cardiopulmonary standard because of the uncertainty surrounding the neurological standard. …

Law and Policy Entrepreneurs: Empirical Evidence on the Expansion of School Choice Policy

Abstract: This study leverages event history analysis to help explain the expansion of public charter school legislation between 1991-2006. This study expands previous work in two important ways. First, while critical distinctions separate public charter school and school voucher programs, both fall comfortably within the broader rubric of "school choice." As such, it is difficult to understand the development of state legislation for one school choice variant independent of the other. Thus, this analysis includes the presence of publicly- or privately-funded voucher programs in a state as a possible factor influencing the adoption of charter school legislation in a state. Second, a methodological contribution emerges by comparing results generated by a complementary log-log model with results generated by a rare event logistic regression model. That school voucher programs' influence on the emergence of state charter schools laws is robust across both models underscores school voucher programs' salience to the emergence of charter school legislation. Understanding the emergence of charter school legislation as a defensive political move to deflect school voucher progress or a political compromise finds support in these results. Either interpretation of the emergence of charter schools' ascendance, however, needs to account for the school voucher programs' influence as well as important suburban political and economic interests. INTRODUCTION As Americans' impulse and appetite for school reform endure, so too does the public education system's resistance to helpful, structural change. As one leading education critic and scholar, Diane Ravitch, noted recently: "It is a well-known fact that American education is in crisis." (1) Moreover, this "well-known" fact is not new as the American education system has remained in a crisis mode (albeit in varying degrees) for at least a century. (2) An impulse to wade into elementary and secondary school reform is broadly shared and expanded relatively recently to include the federal government. Just over a decade ago, the U.S. Congress passed the No Child Left Behind Act of 2001 (3) ("NCLB") which represents the federal government's most dramatic venture into the nation's schools and educational policy and reform. (4) With NCLB Congress sought to leverage state accountability standards in an effort to improve academic performance in general as well as to narrow the achievement chasms that separate various student sub-groups in particular. (5) According to Frederick Hess, one early legacy of NCLB is that "'achievement gaps' became (educational) reformers' catch phrase, and closing those gaps became the goal of American education policy." (6) To be sure, concerns over American student academic achievement and nagging differences in achievement among various student sub-groups are well-founded. (7) An international vantage point is particularly instructive as it reveals that "the performance of American students on international tests is mediocre." (8) And this American educational mediocrity prevails even though the United States outspends virtually all other nations when it comes to education. (9) With anxiety over student academic achievement (and achievement gaps) as a central current motivation for educational reform in this country, educational reform machinery continues to grind. Over the decades numerous reform strategies have come and gone. (10) Recently, perhaps owing to more specific concerns over the economic and social damage inflicted by inefficacious public schools, educational reform strategies began to soften an almost instinctive institutional aversion to market forces. Indeed, many current reform efforts now openly seek to enlist and exploit market forces, though in varying degrees, into the service of improving public schools. (11) Within the larger reform framework of subjecting public elementary and secondary institutions to increased market forces, charter schools appear to have won the battle of ideas at the moment. …

Twombly and Iqbal Reconsidered

Abstract: INTRODUCTION Perhaps the most controversial decisions thus far from the United States Supreme Court under Chief Justice John Roberts may have been in the usually mundane area of civil procedure. (1) In a pair of decisions two years apart, Bell Atlantic Corp. v. Twombly (2) and Ashcroft v. Iqbal, (3) the Court made a jarring shift in its jurisprudence on what plaintiffs need to plead in their complaints in order to keep their suits from being dismissed at the very outset of litigation. These decisions have been described as "the most significant ... in a decade for day-to-day litigation in the federal courts...." (4) Indeed, the decisions are on pace to become the most cited Supreme Court cases of all time. (5) And the scholarly criticism of the two cases has been withering. (6) In particular, commentators believe the decisions will spark a revolution in federal court litigation, and they have criticized the decisions as gifts to the business community that were delivered by judicial fiat. According to commentators, the Court ignored, distinguished, or disavowed long-standing precedents in order to find new meaning in the text of a Federal Rule of Civil Procedure--Rule 8(a)--that reads today as it has since 1938. As far as these commentators are concerned, these decisions are nothing short of "conservative judicial activism." (7) Although I agree with some of this criticism, I think some of it is overstated. First, Twombly and Iqbal may not be nearly as revolutionary as first meets the eye; as a practical matter, lower federal courts long ago elevated pleading standards in the face of the exponential increases in discovery costs faced by corporate defendants. Second, charges of "judicial activism" in this context have a bit less salience than they do in the more typical contexts in which they are made--contexts in which the Court has usurped the authority of another branch of government--because the text the Court reinterpreted in these decisions was a Federal Rule of Civil Procedure, something that the Court itself promulgated and can change at any time. Finally, I think the Court's motives in Twombly and Iqbal--to recalibrate plaintiffs' discovery rights in light of the exponential increases in discovery costs that have developed in the years since the Federal Rules were first promulgated in 1938--were pure, even if its methods were not. In Part I of this Essay, I describe the Court's decisions in Twombly and Iqbal and how they represent a break in the Court's pleading jurisprudence. In Part II, I respond to the criticism of Twombly and Iqbal as revolutionary, conservative judicial activism. In Part III, I argue that, although the Court's motives in Twombly and Iqbal were pure, there may be better responses than elevated pleading standards to the challenges of discovery that only Congress can impose, such as fee-shifting rules. I. FROM "MERE NOTICE" TO "NOTICE PLUS PLAUSIBILITY" PLEADING In order to state a claim under Federal Rule of Civil Procedure 8(a), a plaintiffs complaint must set forth "a short and plain statement of the claim showing that the pleader is entitled to relief...." (8) If the plaintiffs complaint does not meet this standard, then the court can dismiss the plaintiffs complaint on a motion by the defendant before the case proceeds any further. (9) If the plaintiffs complaint does meet the requirements of Rule 8(a), then the case can go forward, the plaintiff can take discovery of the defendant, (10) and the defendant usually cannot stop the case again until discovery is completed and a motion for summary judgment is filed. (11) Until 2007, the Supreme Court had been consistent--and usually unanimous--in admonishing lower courts that Rule 8 did not require very much of plaintiffs. Indeed, the Federal Rules were designed to go easy on plaintiffs: one of the motivations behind their adoption in 1938 was to eradicate the treacherous technicalities of common law pleading and replace them with a "liberal" regime called "notice pleading. …

Are Charters Enough Choice - School Choice and the Future of Catholic Schools

Abstract: INTRODUCTION I. CATHOLIC SCHOOLS, CHARTER SCHOOLS, AND THE "CONVERSION" DEBATE A. Catholic Schools B. Charter Schools C. "Religious" Charter Schools and the "Conversion" Debate II. CHARTERS ARE NOT ENOUGH CHOICE A. The Charter-Choice Debate B. School Choice Without Catholic Schools 1. School Choice and the "Catholic School Effect" 2. School Choice and Neighborhood Social Capital 3. School Choice and the Rule of Law 4. School Choice and Educational Pluralism CONCLUSION INTRODUCTION Padua Academy--an Indianapolis charter school--opened in August 2010. Technically speaking, that is. Until May 2010, a Catholic school--St. Anthony Academy--occupied the same school building. Catholics will immediately notice the connection between the names of the charter school and its Catholic antecedent. Both were named for Saint Anthony of Padua--a thirteenth-century priest renowned for his preaching, who is popularly revered as the patron saint of lost things. (1) The nomenclative similarity between Padua Academy's sister school, Andrew Academy, and its Catholic predecessor, St. Andrew/St. Rita Academy, is even more readily apparent. This is not mere happenstance. In 2010, the Archdiocese of Indianapolis decided to close St. Anthony and St. Andrew/St. Rita and reopen them as charter schools. The Archdiocese justified the decision as a means of "saving" the schools, explaining, "[m]any urban Catholic schools are closing across the nation, and we did not want to leave the students or communities we currently serve.... Through this transformation, an urgent and unmet need within urban Indianapolis will be filled." (2) The "transformation" is a curious one. Much has changed inside the walls of these two school buildings since May 2010. Most significantly, religion has been stripped from the schools' curricula and religious iconography from their walls. Still, the schools' day-to-day operations continue to be directly managed by the Archdiocese, students continue to wear uniforms; and the schools educational culture continues to mimic in many respects the traditional "Catholic school" formula--high expectations for both student academic performance and parental involvement, a disciplined and orderly school environment, and an emphasis on character education. (3) Moreover, the Archdiocese offers religious education classes after school for charter school students, and, while attendance at these classes is not mandatory (and cannot be, by law), participation rates exceed fifty percent at the predominantly Latino Padua Academy and falls just shy of that level at Andrew Academy, where the student body is predominantly African American and non-Catholic. (4) Padua and Andrew Academies are, in some respects, sui generis: the Archdiocese of Indianapolis appears to be the only diocese in the United States directly operating charter schools and also appears to be the only diocese that provides after-school religious education targeted specifically for charter school students. The facts underlying the Archdiocese's decision to close St. Anthony and St. Andrew/St. Rita, however, are anything but sui generis. At least 1600 Catholic schools, most of them located in urban areas, have closed during the past two decades, displacing over 300,000 students. The persistence of the financial and demographic realities underlying these school closures suggest that this trend will continue and even accelerate in the coming years. (5) The Archdiocese of Indianapolis also is not the only diocese to consider "converting" its inner city Catholic schools to charter schools rather than close them altogether. Although such conversions are controversial in Catholic education circles, the financial realities facing many dioceses and the concomitant desire of bishops to avoid abandoning inner city neighborhoods suggest the number of charter conversions likely will increase in coming years. …

The new intrusion

Abstract: The tort of intrusion upon seclusion offers the best theory to target legitimate privacy harms in the information age. This Article introduces a new taxonomy that organizes privacy regulations across four key stages of information flow--observation, capture (the creation of a record), dissemination, and use. Privacy scholars typically propose placing constraints on the dissemination and re-use of personal information, and these dominant models are at the heart of President Obama's Consumer Privacy Bill of Rights. But these restrictions conflict with the First Amendment and other important shared values. Instead, observation is the most promising stage for legal intervention. Intrusion imposes liability for conduct--offensive observations. The tort is theoretically coherent and constitutionally sound because an individual's interests in seclusion co-exist comfortably with society's interests in data dissemination. This puts intrusion in stark contrast with other privacy models, where the alleged harm is a direct consequence of an increase in knowledge. The classic intrusion tort can adapt sensibly to new technologies when it is reduced to two essential elements: (1) an observation, (2) that is offensive. This approach vindicates privacy law's historical roots in torts and offers a path to principled privacy regulation. INTRODUCTION Before Ralph Nader became a household name for his expose of the American automobile industry, Unsafe at Any Speed, General Motors caught wind of the project and mounted an ill-fated intimidation campaign. (1) GM's agents interviewed Nader's friends and acquaintances to gather information that might be embarrassing for the activist--"his political, social,... and religious views,... sexual proclivities,... and [odd] personal habits." (2) GM hired people to shadow Nader incessantly. At one point, an agent followed Nader into a bank and got sufficiently close to see the exact denomination of bills Nader received from the teller. (3) GM also arranged for young women to proposition him with the hopes of entrapping him into an affair. (4) Nader sued the car manufacturer. The New York Court of Appeals found the surveillance practices of GM's agents could be intrusive and tortious. (5) In assessing GM's conduct, the court famously opined that "[a] person does not automatically make public everything he does merely by being in a public place." (6) The tort of intrusion imposes liability on anyone "who intentionally intrudes ... upon the ... seclusion of another ... if the intrusion would be highly offensive to a reasonable person." (7) The interest protected by the tort is the right to respite from observation and judgment so that, when we do participate socially, we can be more engaged and ethical participants. (8) Importantly, liability for intrusion has nothing to do with the content of the information discovered. When GM's spy leaned in to observe the exact denominations of bills that Nader was receiving from the bank teller, it constituted an intrusion regardless of whether Nader received twenty dollars, two thousand dollars, or a kitten. (9) The tort's focus on behavior, as opposed to content, allows intrusion to coexist comfortably with the First Amendment and other core liberal values that safeguard information exchange. The intrusion tort penalizes conduct--offensive observations--not revelations. Intrusion has great, untapped potential to address privacy harms created by advances in information technology. Though the tort is associated with conduct in real space, its principles apply just as well to operations in the era of Big Data. Suppose GM's agents followed Nader into a large retail store. There, they observed not only Nader's general movement throughout the store, but his specific shopping habits. Suppose they made note of every product Nader browsed, even if he did not put them in his shopping cart. They recorded that he replaced the box of (generically branded) Colossal Crunch with Cap'n Crunch after seeing that the name brand cereal was on sale. …

Proportionality in Counterinsurgency: A Relational Theory

Abstract: At a time when the United States has undertaken high-stakes counterinsurgency campaigns in at least three countries (Afghanistan, Iraq, and Pakistan) while offering support to insurgents in a fourth (Libya), it is striking that the international legal standards governing the use of force in counterinsurgency remain unsettled and deeply controversial. Some authorities have endorsed norms from international humanitarian law as lex specialis, while others have emphasized international human rights as minimum standards of care for counterinsurgency operations. This Article addresses the growing friction between international human rights and humanitarian law in counterinsurgency by developing a relational theory of the use of force. The central insight is that a state's authority to use force under international law is derived from, and constrained by, the fiduciary character of its relationship with its people. This relational conception of state sovereignty offers an attractive normative framework for addressing conflicts between human rights and humanitarian law. When states engage in internal armed conflict and belligerent occupation, their assertion of public powers of governance over an affected population entails a concomitant fiduciary obligation to satisfy the strict proportionality standard of international human rights law. Conversely, when states defend their people in traditional international armed conflict and transnational armed conflict against nonstate actors, international humanitarian law ordinarily supplies the applicable proportionality standard. Examples from conflicts in Afghanistan, Argentina, Israel, Libya, and Russia illustrate how the relational approach to choice-of-law analysis could lay a more coherent and principled foundation for counterinsurgency regulation under international law. INTRODUCTION On March 17, 2011, the United Nations Security Council adopted Resolution 1973, authorizing U.N. member states "to take all necessary measures" short of occupation "to protect civilians and civilian populated areas" in Libya from the brutal counterinsurgency campaign waged by Colonel Muammar el-Qaddafi. (1) In explaining the legal basis for its resolution, the Security Council emphasized the Qaddafi government's sharp "escalation of violence" against insurgents in eastern Libya and the "heavy civilian casualties" attributed to this violence. (2) The Security Council took pains to stress further that the Libyan government had transgressed its basic "responsibility ... to protect the Libyan population" by failing to take "all feasible steps to ensure the protection of civilians." (3) As American and European forces commenced military strikes in Libya, they endeavored to frame their mission objectives in terms consistent with Resolution 1973. The professed rationale for intervention was humanitarian: to prevent the Libyan government from continuing to use unlawfully indiscriminate and disproportionate force in its counterinsurgency operations. In the words of U.S. Admiral Mike Mullen, the chairman of the Joint Chiefs of Staff, the unfolding action in Libya was about "limiting or eliminating" Qaddafi's "ability to kill his own people." (4) Military intervention was framed as an appropriate response to the Libyan government's flagrant violation of international legal standards governing the use of force in counterinsurgency. Given the strident condemnation of Libya's counterinsurgency campaign, a casual observer might be forgiven for concluding that the international legal standards governing a state's use of force in counterinsurgency must be well settled. Sadly, this is not entirely the case. At the close of the twenty-first century's first decade--a period that will be remembered for costly counterinsurgency operations in Afghanistan, Chechnya, Iraq, Sri Lanka, Sudan, and a host of other locations--international law has yet to develop a coherent framework for counterinsurgency regulation. …

Evading Legislative Jurisdiction

Abstract: In the last few years, and mostly unnoticed, courts have adopted a different approach to issues of legislative jurisdiction. Instead of grappling with the difficult question of whether Congress intended a law to reach beyond U.S. borders, some courts have side-stepped it entirely. Courts have done so by redefining extraterritoriality. Significant and contentious decisions in the Ninth and D.C. Circuits paved the way by holding that not all regulation of overseas foreign conduct is extraterritorial. And then suddenly, in 2010, the U.S. Supreme Court may have unintentionally breathed life into the practice. In its landmark Morrison v. National Australia Bank decision, the Court suggested that legislation focused on domestic conditions may not be extraterritorial, even if the legislation regulates overseas foreign activity. This Essay laments the birth of this troubling new approach, where established law is jettisoned and legislative jurisdiction analysis is evaded. The Essay's aim is largely descriptive: it summarizes an important development and reveals how courts have lapsed into error. But it goes beyond the descriptive to also critique the new practice. Redefining extraterritoriality not only subverts established doctrine, it removes an important safeguard to the difficulties that extraterritorial regulation creates. More problematically, the practice undercuts principles that have been foundational in both domestic and international law. INTRODUCTION At one time, the fundamentals of the law of legislative jurisdiction were mostly settled. As a general matter, the law shielded each state from the intrusion of others, ensuring that each could pursue its own economic and social objectives. Extraterritorial regulation--the regulation of foreign conduct outside the United States--although tolerated under certain circumstances, was disfavored and in tension with basic international law principles. To be sure, significant and vigorous debate existed at the margins over the extent to which constitutional provisions constrained congressional action and over how courts should interpret a statute's geographic reach in the face of congressional silence. But while those debates played out at the periphery, the core doctrine remained untouched. (1) Even when globalization rendered territorial limits to law less important as a descriptive matter, the heart of the doctrinal analysis remained intact. Absent contrary evidence, Congress was presumed to have exercised only its territorial jurisdiction. What once was set, however, has softened. In the last few years, and largely unnoticed, courts have taken a different tack. Instead of wrestling with the difficult questions of whether Congress intended a law to apply to foreign conduct and, if so, whether doing so is constitutional or consistent with international law, some courts have sidestepped the issue of legislative jurisdiction entirely. They have done so by redefining extraterritoriality itself. Significant decisions in the Ninth and the D.C. Circuits paved the way by holding that not all regulation of overseas foreign conduct is extraterritorial. (2) And then in 2010, perhaps unintentionally, the U.S. Supreme Court seemed to breathe life into the practice. The Court suggested that legislation "focus[ed]" on domestic conditions is not extraterritorial, even if the legislation regulates foreign activity. (3) This Essay laments the birth of this troubling new approach. Unlike a number of recent articles that have sought to develop comprehensive frameworks for addressing extraterritorial regulation (4) or to refashion this area of law, (5) the Essay's goal is more modest. It seeks to limn an important development and reveal how courts have lapsed into error. In so doing, it also aims to clear away some of the confusion that has festered in the lower courts. Part I summarizes the law of legislative jurisdiction and the doctrinal principles that courts use to determine whether Congress intended to regulate conduct occurring outside U. …

The Parental Choice Fallacy in Education Reform Debates

Abstract: INTRODUCTION Some tout parental school choice as a strategy for promoting, among other school-related goods, educational innovation. (1) This Article offers clarifying and skeptical thoughts about that position. It first explains what "educational innovation" and "parental choice" mean. It then considers what limitations on this strategy might arise from existing legal regulations, from market forces, or from ethical obligations to children. Finally, the Article explains why parental choice is also unlikely to improve education for the children most in need of a better academic environment and suggests an alternative approach to student reassignment that is much more likely to do so. I focus on educational innovation because this Article appears in a symposium entitled "Educational Innovation and the Law." I suspect the organizers of the symposium did not really have educational innovation in mind, but rather one of the other concepts discussed below--in particular, improvement of educational quality. Nevertheless, it is interesting to talk about educational innovation and its connection or lack thereof with parental choice. I do not have a position on whether innovation is needed. Presumably one would take the position that it is needed after concluding that existing pedagogies are inadequate. Like most other participants in the school reform debate, I know very little about primary or secondary school curriculum and instructional techniques, so I would not presume to make such a judgment. My own ignorance is part of the reason I am skeptical about relying on parental choice to promote educational innovation, or even to improve schools' delivery of existing curricula and pedagogies. Being a parent has not transformed me into the omniscient being that defenders of parental entitlement sometimes seem to suppose all parents are. Rather than argue that innovation is needed, then, I simply accept that some people think it is and address what obstacles might exist to using expanded parental choice as a means to achieving this aim. Part I clarifies what I understand educational innovation to be and distinguishes that from other concepts at play in the school choice debate. Part II considers various limitations on innovation in curriculum and instruction and gives reasons for skepticism about reliance on parental choice as a means to any aim other than gratifying parents. Part III offers an alternative, more child-centered approach to student reassignment. I. WHAT IT MEANS TO PROMOTE EDUCATIONAL INNOVATION THROUGH PARENTAL CHOICE "Educational" means relating to instruction of students, providing knowledge and information, and fostering skills through a learning process. (2) "Innovation" is the act or process of inventing or introducing some new thing or way of performing a task. (3) Thus, "educational innovation" means creating a new pedagogy, a new way of instructing and training students. This is distinct from several similar concepts. First, educational innovation is distinct from educational quality, which means success at achieving educational aims, aims that could be as old as the hills and that might be achieved by long-established pedagogical methods. Presumably those who advocate parental choice as a strategy for promoting educational innovation hope that this will improve educational quality, but the two things are distinct. Innovation can actually lower quality, as arguably occurred when schools switched to factory-prepared meals for school cafeterias. (4) Conversely, one might improve educational quality without innovating, simply by making teachers work harder at applying their current approach. One might also improve quality by having teachers switch to a different, but already established, approach. Thus, innovation is also different from change; innovation is a change to something new. Because "educational" refers to what teachers do in the classroom, "educational innovation" is also not equivalent to innovation in school financing or administration. …

Generation C: Childhood, Code, and Creativity

Abstract: A. Goffman and the "Digital Native" Child development does not happen in a vacuum. As I have argued elsewhere, (120) the correct paradigm for conceptualizing human development is an ecological and contextualist one in line with the theory of Vygotsky, Bandura, and Bronfenbrenner: children develop in a particular context, and they are influenced by the tools their environment offers. (121) Essentially, development is a historically, culturally, and technologically specific construct--a dialectic conversation between the person and the environment. (122) For example, applying a contextualist approach to development, we know that a child with access to a computer and broadband from age two in the United States will develop in a fundamentally different manner than a child in Zambia whose first Internet access comes through a phone at age sixteen. These children's development is nonlinear (123)--the first child may demonstrate superior technology skills at age eight to those of the second child at age eighteen. The first child's skills may also significantly outstrip the skills of her parents, and parental supervision of children with superior technology skills presents a significant challenge for even the most diligent parent. Having established this mechanism of development and the complexity that technology brings, we next turn to the difficult legal questions surrounding childhood identity building, experimentation, and accountability. Two competing dynamics impact children's identity expression in digital spaces with respect to privacy questions--one internal to the child and one external. The first is an internally motivated need for identity building and expression in a community, and the second is the risk that the digital trail of this experimentation will limit future opportunities for the child through generating stigma. It is this set of developmental concerns relating to identity, privacy, and creativity that this section considers using the theory of Erving Goffman. 1. Impression Management: The Bureaucratization of Spirit The role of identity experimentation and its connection to human development is perhaps most associated with the seminal work of notable sociologist Erving Goffman. (124) Goffman introduced the concept of "impression management"--where individuals, like actors, attempt to influence a situation by conveying an impression that it is in their interest to convey. (125) In other words, individuals experiment with crafting and performing personas for themselves while monitoring the reactions of others (126) to these personas or characters. (127) In Goffman's words, "[t]he expressiveness of the individual appears to involve two radically different kinds of sign activity: the expression that he gives, and the expression that he gives off." (128) Goffman uses the metaphor of a play being staged in the theater to convey the dynamics of identity crafting. A person, like an actor, has the ability to choose his stage and props, as well as the costume for a specific audience. (129) The goal for the actor is to maintain coherence and to adjust to the different stagings and interaction with other actors. (130) In other words, for Goffman, it can be said that certain structural constraints both enable and limit agency and vice versa. It is precisely negotiating this tension between creating expression and creating an impression that children, particularly teens, are still in the process of learning to manage. Meanwhile, these child performances now simultaneously play out on two stages at once--one performance in physical space for a physical audience and a second in digital spaces for a (sometimes overlapping) virtual audience. For Goffman, it is of fundamental importance to have an agreed upon definition of the situation. Without a clear set of parameters and shared definition guiding the structure of a given interaction, the interaction lacks coherency and the actors' ability to manage impressions falters. …

Executive Trade Secrets

Abstract: The law discriminates among a corporation's secrets. In the eyes of the law, commercial secrets of corporations are legitimate secrets that deserve legal protection and nondisclosure, but personal secrets of executives are not as deserving of legal protection and nondisclosure. This divergent treatment of secrets has resulted in a legal landscape of perplexing, paradoxical paths for corporations and executives concerning executive disclosures--a precarious landscape that has left corporations and investors dangerously susceptible to revelations of private facts that shock market valuation and institutional stability. This Article explores this divergent treatment of secrets in the context of public corporations and the private individuals who manage them, and offers a new way of thinking about corporate and personal secrets. This Article conceives the concept of Executive Trade Secrets as a pragmatic theoretical framework for unlocking this paradox of secrets and addressing the challenges surrounding executive disclosures. This Article is the first to use trade secrets law to address the interdisciplinary legal issues surrounding executive disclosures. It re-conceptualizes private matters of executives as legally protectable trade secrets by unfolding the hidden symmetry between commercial secrets and personal secrets. It reveals Executive Trade Secrets as faithful to the first principles of the laws of trade secrets, privacy, securities, and corporations, and explains how such fidelity protects the privacy interests of executives and the corporate interests of shareholders. This Article, ultimately, constructs a way to think anew about executive disclosures and the larger issues at the modern nexus of secrecy, privacy, and commerce. INTRODUCTION I. PUBLIC FIRMS AND PRIVATE MANAGERS A. The Disclosure Obligations of Public Firms B. Disclosure Obligations Relating to Executives C. The Rise of Executives/The Fall of Executive Privacy II. LEGAL TENSIONS & INCONSISTENT PRACTICES A. Tensions Under Federal Securities Law B. Tensions Under Corporate Law 1. Duty of Care 2. Duty of Loyalty C. Tensions Under Privacy Laws D. Inconsistent Practices III. INTRODUCTION TO TRADE SECRETS IV. THE EXECUTIVE TRADE SECRETS FRAMEWORK A. An Introduction to Executive Trade Secrets B. Fidelity to Laws Concerning Executive Disclosures C. Executive Disclosures with Executive Trade Secrets D. A Political Analogy: Executive Privilege V. KEY IMPLICATIONS OF EXECUTIVE TRADE SECRETS A. A Shield to Protect or a Shield to Hide? B. Better Executive Pools & More Public Firms C. The (Further) Commoditization of Personal Privacy CONCLUSION INTRODUCTION Secrets pose vexing problems for law and society. (1) The WikiLeaks scandal that unfolded in 2010 illustrates the difficulties concerning secrets in the Information Age. (2) Free societies and free markets generally require openness and transparency. (3) But individuals, states, and firms that inhabit and participate in those free societies and free markets often desire intimacy and secrecy. (4) To satisfy these divergent goals, the law discriminates among secrets--aiding some to hide in the dark, (5) while pushing others into the light. (6) In the context of public corporations, the law facilitates hiding business secrets but helps expose the secrets of business executives. (7) In the eyes of the law, commercial or trade secrets are legitimate secrets that deserve legal protection and nondisclosure (8) while personal secrets concerning private facts of executives are not as deserving of legal protection and nondisclosure. This discriminatory treatment of secrets has resulted in a muddled legal landscape of paradoxical paths concerning executive disclosures of private information--diminishing privacy protections for executives, weakening legal safeguards for investors, and leaving corporations and investors dangerously susceptible to revelations of private facts that shock market valuation and institutional stability. …

The Shortest Distance: Direct Filing and Choice of Law in Multidistrict Litigation

Abstract: The amount of multidistrict litigation (MDL) in the federal courts is skyrocketing, particularly in the areas of mass torts and products liability. One significant reason for the explosion of MDL has been the difficulty of maintaining nationwide or multistate class actions in these areas, due in large part to the choice-of-law problems created by operation of many different states' laws to plaintiffs' claims. One comparative benefit of MDL is that individual cases within the consolidated pretrial proceedings retain their "choice-of-law identity "--that is, that transfer of a case into a pending MDL does not change the choice-of-law rules that would otherwise apply to a plaintiffs case had it proceeded in its original home forum. In other words, the case carries the choice-of-law rules of the original forum state with it into the MDL. Because MDL is purportedly a consolidation only for pretrial proceedings, unlike a class action, the application of different choice-of-law rules to different plaintiffs' claims does not render the MDL proceeding itself infeasible. This framework, however, is in disarray due to the advent and increasing popularity of a practice called "direct filing." In direct filing, plaintiffs bypass the transfer process and file their cases directly into an MDL court. Amid the growing popularity of this practice, the question of what choice-of law rules ought to apply to direct-filed cases has been left unaddressed. This paper seeks to expose and resolve the problem by permitting direct filing, but requiring plaintiffs to declare a proper home district whose choice-of-law rules would apply to their claims. Such an approach would both preserve the efficiency benefits of direct filing, and be consistent with the values of federalism and litigant autonomy underlying the choice-of-law framework in diversity cases. INTRODUCTION Aggregate litigation and choice of law are poor bedfellows. Aggregate litigation is driven by the need to resolve many cases efficiently in a single consolidated proceeding by emphasizing the commonalities of cases. (1) Choice of law demands attention to the uniqueness of individual cases, requiring analysis of potentially conflicting state policies and interests in light of the particular circumstances of cases. (2) Aggregation seeks sameness, while choice of law focuses on particularity. When aggregation of cases based on state law proceeds in a federal court under diversity jurisdiction, the complexity increases. Federal courts sitting in diversity must respect states' choice-of-law rules because those rules represent states' choices about the scope of their laws in cases in which they have regulatory interests, (3) and in order to ensure that diversity jurisdiction does not change the substantive law that would otherwise apply to a plaintiffs case. (4) As numerous commentators have observed, choice of law matters to the outcomes and values of cases, but it also represents differences in states' approaches to regulating disputes in which they have interests. (5) For aggregation and choice of law to coexist peacefully, and to avoid running afoul of these federalism considerations, the aggregation mechanism must accommodate the individual nature of cases within the collective. In other words, federal aggregation structures should seek choice-of-law neutrality for the cases within in the aggregate. Given these issues, it should come as no surprise, then, that choice of law has presented a seemingly intractable problem for the nationwide, diversity-based, mass-tort class action. (6) Indeed, the federal courts, where most large class actions are now litigated due to the Class Action Fairness Act of 2005 (CAFA), (7) have come to a consensus that the operation of choice-of-law rules demands that different state laws apply to different plaintiffs within the class, and that those differences render the classes insufficiently cohesive for class certification. (8) Calls for federal choice-of-law rules that ensure that a single state's law can apply in a nationwide mass-tort case have fallen on deaf ears, in part because Congress has little interest in facilitating class actions, (9) but also because any such rule would raise serious potential federalism and due-process-related objections. …

The HHS Contraception Mandate vs. the Religious Freedom Restoration Act

Abstract: INTRODUCTION In mid-January 2012, in its ruling in Hosanna-Tabor Evangelical Lutheran Church v. Equal Employment Opportunity Commission, (1) the Supreme Court unanimously rejected the Obama administration's position that the Constitution does not require a "ministerial exception" to the employment-discrimination laws. (2) The Court specifically repudiated what even Justice Elena Kagan called the Obama administration's "amazing" argument that the Religion Clauses had no bearing on the matter. (3) Unchastened, the Department of Health and Human Services (HHS) Secretary Kathleen Sebelius one week later renewed her declared "war" (4) against the Catholic church in America and against faithful Catholics (as well as against other religious organizations and believers who share the Catholic opposition to contraceptives and/or abortifacients). Specifically, she announced that HHS, in implementing President Obama's signature healthcare legislation, (5) would require most health-insurance plans to include in the preventive services they cover all FDA-approved forms of contraception (including contraceptives that sometimes operate as abortifacients). (6) The HHS rule would allow (but not require) the HHS bureaucracy to establish exemptions from this mandate only for an extremely narrow category of "religious employers" (7): an organization qualifies as a "religious employer" only if its purpose is the "inculcation of religious values," it "primarily employs persons who share the religious tenets of the organization," and it "primarily serves persons who share the religious tenets of the organization." (8) As the head of Catholic Charities USA observed, "the ministry of Jesus Christ himself" would not qualify for the exemption. (9) Nor will Catholic Charities, Catholic Relief Services, Catholic hospitals, food banks, homeless shelters, most Catholic schools, and even many or most diocesan offices, much less Catholic business owners who strive to conduct their businesses in accordance with their religious beliefs. The HHS rule properly aroused criticism across the political spectrum for its trampling of religious liberty, including a vehement "J'Accuse" essay by Catholic thinker Michael Sean Winters, who describes himself as "a liberal and a Democrat." (10) Unlike Winters, I am not at all surprised that, when President Obama goes beyond talk to action, he sides with his "friends at Planned Parenthood and NARAL" and "treat[s] shamefully those Catholics who went out on a limb to support" him. (11) What I do find remarkable--even amazing (to reprise Justice Kagan's term)--is that the HHS mandate is so clearly unlawful. In particular, the HHS mandate violates the federal Religious Freedom Restoration Act (RFRA). (12) RFRA provides that the federal government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person: "(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." (13) This standard applies "even if the burden results from a rule of general applicability." (14) The term "exercise of religion" is, in turn, defined broadly to mean "any exercise of religion, whether or not compelled by, or central to, a system of religious belief." (15) RFRA provides that a later-enacted federal law, along with its regulatory implementation, is subject to RFRA "unless such law explicitly excludes such application by reference to this chapter." (16) In other words, RFRA bolsters the already robust presumption against implied repeal by stating that any repeal or override of its protections must be explicit. There is nothing in PPACA that explicitly overrides RFRA. (Nor is there anything that impliedly does so with respect to the HHS mandate.) So the HHS mandate must comply with RFRA. There are thus four questions involved in determining whether the HHS mandate violates RFRA: (1) Does a person engage in an "exercise of religion" when he, for religious reasons, refuses to provide health insurance that covers contraceptives and abortifacients? …

Multilingualism and Multiculturalism: Transatlantic Discourses on Language, Identity, and Immigrant Schooling

Abstract: INTRODUCTION In September 2010, an eye-catching article appeared on the front page of the New York Times "Arts" section. The headline read, "Cultures United to Honor Separatism." (1) Basque and Catalan nationalists, Sinn Fein leaders, and others were convening on the island of Corsica, not to chart out war strategies, as might have been expected, but rather to discuss cultural politics. As time would tell, pitched battles over sovereignty and independence seemed to be yielding to equally passionate calls for linguistic and cultural recognition. (2) Facing the pressure of English as the global lingua franca, historically militant groups were placing their political weight on maintaining, and in some cases, reviving their distinct languages and cultures. To most readers, the article was an interesting novelty especially for a section devoted to the arts. On the surface, it presented concerns politically and geographically remote from those weighing on the minds of most New Yorkers, and most Americans. Yet for linguistic minorities and for those attuned to their lives, it resonated deeply. Most strikingly, a nationalist party leader underscored culture and language to be "the essence" of Corsican identity. (3) While his heartfelt words evoked a truth often overlooked in public debates over European regional languages, they also rang true for immigrant languages on both sides of the Atlantic. Of course, one can easily distinguish between immigrant and regional language speakers. The former presumably are engaged in a voluntary process; the latter seek to recapture or sustain a legacy involuntarily lost. In Europe the distinction is especially noted. Various European Commission and Council of Europe declarations have weighed upon national governments to afford regional languages greater accommodations, (4) thereby giving those languages a degree of "cultural capital" not granted those spoken by immigrants. This obvious slight should not be lightly dismissed. Children from immigrant families in Europe, no less than those in the United States, feel the push and pull of competing forces as they simultaneously struggle to maintain ties with their family and community while gaining social acceptance and economic status in the mainstream of society. Unlike prior waves of immigrants for whom leaving the homeland was a painstaking and clear break, for this growing number of students, culture and identity are decreasingly grounded in locality. Though advances in technology, including discounted air travel, satellite TV, the Internet, and other media, soften the edges around cultural differences, they just as affirmatively promote transnational lifestyles that transport those differences to new destinations and render them borderless. Current controversies over multiculturalism and immigration have brought these realities to the political forefront. As immigrant groups, some more than others, maintain their language, cultural traditions, political affiliations, and economic ties to their home land, they lay bare notions of personal and national identity. The long-standing assumption, in countries like the United States and even more forcefully France, that immigrants should abandon their native language and culture and blend into the mainstream is now open to question. Transformed by migration, the mainstream increasingly defies definition. Meanwhile, countries like the Netherlands, and more affirmatively, Great Britain, which have promoted multicultural integration, now claim to assertively reject those policies in favor of assimilation. Cries of "Who are we?," often tied to calls for more vigorous immigration control, reverberate loudly across Western Europe and within certain corners of the United States. (5) Together these developments pose particular challenges for state-operated schools where the connection between language and identity bears individual and national consequences. …

Plight of the Boat People: How to Determine State Obligations to Asylum Seekers

Abstract: INTRODUCTION Scared, shivering, and disheveled, thousands of people float across the Indian Ocean from Asia to reach Australia (1) in search of freedom from the persecution that they face in their homes (2) After these "boat people" land on Australian shores, they are housed in camps, waiting for a better life However, the same hopeful sentiment is not reflected by the receiving country For example, between 2009 and 2010 there was a thirty-one percent increase in asylum seekers in Australia (3) As a result, Australian politics have been in turmoil, trying to create a comprehensive policy to address the thousands of asylum seekers that land on its shores (4) At the end of 2009, there were 433 million forcibly displaced people worldwide (5) Of these, 152 million were refugees and, of that number, 983,000 were asylum seekers (6) More than 922,000 individual claims for asylum or refugee status were registered in 2009, with South Africa receiving the world's largest number of individual applications, followed by the United States and France (7) These refugees have escaped political and cultural persecution for their political views, sexual preference, or gender However, when they arrive at their destination country, they face confusion and uncertainty Asylum seekers encounter several challenges in the current refugee system They endure protracted refugee situations, (8) secondary refugee flows, (9) the extra-territorialization of migration controls, (10) new forms of displacement and asylum, (11) wide discrepancies in the recognition of asylum status, contraction of asylum policies and practices by states, (12) and inconsistencies in refugee status determination (RSD) mechanisms (13) The main issue underlying all of these challenges is the problem of, and confusion surrounding, the determination of state obligations to asylum seekers Human rights are indivisible and inalienable, (14) but states have discretion in granting and providing some of these rights to asylum seekers because no international covenant obligates them to do so There is no uniform system to determine the obligations that states have to asylum seekers other than the base requirements outlined in the 1951 Convention Relating to the Status of Refugees, the main international document on refugees In fact, states, international organizations, and publicists (15) differ on the methodology that should be used to determine these obligations A consensus-based approach is the appropriate method of determining and expanding state obligations within the 1951 Convention But recent attempts to expand the rights of asylum seekers through the new method of evolutionary interpretation of treaties could result in an unpredictable and unwanted application of the 1951 Convention, leaving asylum seekers unsure of their rights and options The application of the classical tenets of customary international law to these obligations offers a better chance of creating stability in the asylum system for both asylum seekers and states While such an approach appears to provide less immediate relief to asylum seekers, the consistency and stability that results from customary international law yields benefits that outweigh the loss in immediate relief This Note examines how states and asylum advocates should determine state obligations to asylum seekers, asserting that states should expand their obligations to asylum seekers based on new norms of customary international law In doing so, Part I introduces some basic refugee law concepts and discusses in detail the aforementioned challenges for states and asylum seekers Part II outlines three different modalities that the international community may use to determine these obligations and asserts that applying the theory of evolutionary interpretation of treaties to the 1951 Convention Relating to Refugees is an unpredictable method of expanding state obligations to asylum seekers that fails to adequately address the problem …

Chipping Away at the Illinois Brick Wall: Expanding Exceptions to the Indirect Purchaser Rule

Abstract: INTRODUCTION For over thirty years, the Supreme Court's decisions in Illinois Brick Co. v. Illinois (1) to deny compensation to indirect purchasers (2) harmed by antitrust violations has drawn consistent criticism. (3) Illinois Brick limits private treble damage actions to the antitrust violator's direct customers, leaving subsequent purchasers who often suffer substantial harm without a remedy. The well-publicized Microsoft antitrust litigation provided a glaring example of the problems with this rule. Large scale purchasers who suffered considerable harm could not recover, while the only parties who could sue refused to do so for fear of economic retribution. (4) In 2007, the Antitrust Modernization Commission issued its report recommending legislative repeal of Illinois Brick, and most commentators agree that reform is needed, even if they disagree on how to correct the rule. (5) Such sweeping calls for change have gone unanswered for over three decades, with the Supreme Court reaffirming Illinois Brick (6) and Congress failing to provide a legislative fix. Making a bad situation worse, many lower courts deny indirect purchaser actions even where none of the policies animating Illinois Brick support this result. Rather than add to the chorus calling for the Illinois Brick wall to come down, (7) this Note identifies circumstances, like those in the Microsoft litigation, in which none of Illinois Brick's rationales apply. Where this happens, exceptions should be carved out of the rule to remedy the most egregious harm caused by denying indirect purchaser recovery. Exceptions currently receive inconsistent treatment, often accompanied by inadequate or inaccurate policy considerations. This Note creates a coherent, flexible approach to identifying and applying exceptions using policy as a guide, rather than clinging to rigid categories and rules. Part I begins by identifying deterrence and compensation as the twin aims of antitrust law before discussing Illinois Brick, which deemphasized compensation and elevated other policy concerns. Part II describes how changes in the antitrust landscape have undermined most of the policy rationales once supporting Illinois Brick. The weaknesses of the rule discussed in Part II bolster the call for exceptions in Part III. Part III describes a variety of situations in which allowing an exception promotes antitrust goals more effectively than the rule itself, and it culminates in an argument for exceptions when the direct purchaser is unlikely to sue, (8) rather than limiting indirect purchaser suits to cases where the direct purchaser is legally unable (9) to do so. The latter approach undermines not only the goals of Illinois Brick, but the goals of antitrust law generally in a number of cases. While greater exceptions may not make Illinois Brick ideal, exceptions will do more to strengthen enforcement, promote deterrence, and compensate victims than will fruitless attempts to create an ideal rule. (10) Further, exceptions do not require the Court or Congress to reach consensus on new normative goals. Exceptions do nothing more than bring Illinois Brick back in line with the normative goals Congress and the Court already established--goals which they appear unwilling or unable to relinquish in pursuit of an ideal rule. I. THE POLICY OBJECTIVES OF ANTITRUST LAWS AND ILLINOIS BRICK A. The Policies of the Sherman Antitrust Act: Deterrence and Compensation With the passage of the Sherman Antitrust Act, Congress created a vigorous dual enforcement regime designed to deter anticompetitive behavior by subjecting violators to both government prosecution (11) and private treble-damage actions. (12) Vigorous enforcement was needed to combat the substantial harm trusts caused. (13) Responding to public sentiment, eliminating this harm was Congress's central goal in passing the Sherman Act. Indeed, when the Sherman Act was passed, "[t]he general disposition of the public was not in doubt. …

Aggregation and Constitutional Rights

Abstract: A. Individualized Constitutional Rights A series of constitutional rights remain highly individualized and therefore difficult to assert in damages class actions that require commonality and predominance. The Supreme Court individualizes rights in a variety of ways: regarding the definition of the right violation itself, or regarding other elements of the right such as causation, or regarding defenses that the government might raise to rebut presumptions of a violation. The Court may do so to simply make it difficult to obtain a remedy for a violation of a right except in egregious cases. The Court may view the right as requiring a case-specific inquiry, based on text or purpose or other interpretative methods. The Court may view a brighter-line rule as unduly burdensome on government. In contrast, the Court may seek to create brighter-line to give notice to government. As Fred Schauer has prominently developed, general rules may be advantageous for a host of reasons. (101) They more readily protect the interests of the broader public. They may be more difficult to evade and may simplify proof. They provided clearer notice. On the other hand, they may be less adaptable and flexible. Difficult substantive choices all impact the scaling of a right and therefore the ability to pursue aggregate remedies. It would be far beyond the scope of this piece to comprehensively describe differences as to the individualized or aggregated definitions of various constitutional rights. Instead, I provide a set of particularly illustrative examples to show differences in the Court's approach to the substance of the constitutional right and the impact on aggregate litigation. 1. The Eighth Amendment Requirements that a plaintiff satisfy a showing of subjective government intent to violate the constitution render the inquiry a highly individualized one. In Eighth Amendment cases involving prison conditions, the Court has ruled that plaintiff must satisfy both an objective prong and a subjective prong that the government official (usually a prison guard) acted with "deliberate indifference," under the circumstances. (102) Eighth Amendment claims by prisoners commonly involve allegations concerning prison conditions such as provision of adequate medical care, (103) personal security from violence by other inmates, excessive force by corrections officers (which requires a showing of an "unnecessary and wanton infliction of pain'), (104) and punitive measures taken against prisoners. The Court in Wilson v. Seiter (105) specifically rejected the argument advanced by the plaintiffs that there should be a different showing in a case alleging systemic violations and not a single act. The plaintiffs had hoped to avoid the need to show that officials acted with a particular malicious mental state, but rather to rely on evidence of systemic violations. The Court held that there was no difference between the need to show an individual official's state of mind in a "one-time" versus a "systemic" violation, arguing that the word "punishment" in the Eighth Amendment implies a mental state that must be present to make out a claim. (106) However, the Court also cited to policy reasons supporting individualization of the inquiry, where in particular cases there may be "composite conditions" that resist "pigeonholing." (107) The Court explained that [u]ndoubtedly deprivations inflicted upon all prisoners are, as a policy matter, of greater concern than deprivations inflicted upon particular prisoners, but we see no basis whatever for saying that the one is a "condition of confinement" and the other is not--much less that the one constitutes "punishment" and the other does not. (108) As a result, plaintiffs attempting to bring a class action concerning prison conditions must show that officials engaged in "deliberate indifference," both showing that the conditions are objectively unconstitutionally inadequate and subjectively manifesting deliberate indifference through an "unnecessary and wanton infliction of pain. …

Rethinking Anti-Aggregation Doctrine

Abstract: This Article proposes a new approach to "anti-aggregation agreements "--contractual provisions that purport to prohibit parties from participating in class actions and other aggregate proceedings. Anti-aggregation agreements are permitted by Supreme Court doctrine under the Federal Arbitration Act but eliminate financial incentives for attorneys to seek out and prosecute wrongdoing. Where private litigation performs an important deterrent function, anti-aggregation agreements raise the prospect that protected companies will be permitted to violate the law with impunity. Taking the Supreme Court's arbitration doctrine as a given, the Article argues that an anti-aggregation agreement's enforceability should be tied to its effect on actual regulatory compliance. Consistent with the Court's preference for privately-designed dispute-resolution procedure, this test allows an anti-aggregation agreement to be enforced by default. But if a party shows that the agreement permits significant, unremedied wrongdoing, the agreement is not enforced. In contrast to the leading approach in the doctrine and scholarship, this test allows enforcement of anti-aggregation agreements that eliminate claiming against a protected company. At the same time, the test invalidates agreements that result in substantial wrongdoing, regardless of their effect on claiming. In doing so, the test ties the decision not to enforce an anti-aggregation agreement to a fact of normative and legal significance. Where it is shown that enforcement of an agreement permits significant unremedied wrongdoing, there can be little doubt that eliminating incentives for private attorneys to enforce the law creates an impermissible gap in the regulatory enforcement framework. The disagreements and circuit splits that have followed the Supreme Court's decision in AT&T v. Concepcion (1) provide a much-needed opportunity to reconsider doctrine governing the enforceability of anti-aggregation agreements--contractual provisions that purport to prohibit either side to a contract from asserting claims in connection with others. (2) A basic justification for rules that authorize aggregate claiming is to overcome the problem of process costs overwhelming the stakes in individual proceedings. By permitting similarly-situated claimants to share the costs of claiming, aggregation enables claiming that otherwise would be a money-losing proposition. (3) Together with rules that permit an attorney to recover reasonable fees from the "common fund" created by a successful lawsuit, (4) this creates a powerful incentive for private attorneys to seek out and prosecute violations of the law. (5) Anti-aggregation agreements pose a direct challenge to this mechanism of law enforcement. Formally justified as an effort to simplify and streamline dispute resolution, their most important practical effect is to eliminate the cost-spreading made possible by aggregation. In doing that, anti-aggregation agreements eliminate incentives for attorneys to seek out and prosecute violations of the law. The challenge for courts, underscored by Concepcion, is that private agreements governing dispute resolution procedure are sheltered by the Federal Arbitration Act (FAA). (6) Although the FAA allows an anti-aggregation agreement to be invalidated "upon such grounds as exist at law or in equity for the revocation of any contract," (7) the Supreme Court has read the Act to express a "liberal federal policy favoring arbitration," (8) which ordinarily demands enforcement of arbitration agreements "according to their terms." (9) In the absence of wholesale revision of the Court's FAA jurisprudence, the question is what, if anything, overrides the FAA's default policy of enforcing private dispute resolution contracts according to their terms. This Article proposes that the enforceability of an anti-aggregation agreement should turn on its effect on actual regulatory compliance. …

"Resolution VI": The Virginia Plan and Authority to Resolve Collective Action Problems under Article I, Section 8

Abstract: American courts have traditionally followed the general principle of limited enumerated federal power in determining the scope of national authority. Recently, however, a group of influential constitutional scholars such as Jack Balkin, Robert Cooter, Andrew Koppelman, Neil Siegel and others have called for doing away with this traditional principle and replacing it with the principle declared in Resolution VI of the Virginia Plan. Originally introduced in the Philadelphia Constitutional Convention, Resolution VI declares that federal power should be construed to reach all matters involving the "general interests of the Union," those to which the "states separately are incompetent" and those affecting national "harmony." Under this principle, Congress has power to regulate all collective action problems of national importance. In support of their claim, Resolution VI proponents argue that the members of the Philadelphia Convention adopted Resolution VI and sent the same to the Committee of Detail with the expectation that the resulting text would be based on this overriding principle of national power, and that the framers accepted the text of Article I, Section 8 as the enactment of Resolution VI. These scholars also claim (or rely on the claim) that Philadelphia Convention member James Wilson publicly declared during the ratification debates that the framers based Article I, Section 8 on the principle of Resolution VI. A close reading of the historical sources, however, shows that the framers did not view Article I, Section 8 as having operationalized the general principle of Resolution VI and authorizing federal action in all cases in which the "states separately are incompetent." In fact, they expressly stated otherwise. Even more importantly, it turns out that there is no historical evidence that Resolution VI played any role whatsoever in James Wilson's speech or anywhere else during the ratification debates. Claims to the contrary are based on errors of historical fact. INTRODUCTION I. THE HISTORY OF RESOLUTION VI A. May, 1787 B. July, 1787 1. Roger Sherman's Proposal 2. Gunning Bedford's Amendment II. CURRENT THEORIES OF "RESOLUTION VI" A. Textual Meaning v. Textual Construction B. The Claims of Resolution VI Advocates III. RESOLUTION VI AND THE ORIGINAL INTENT OF THE FRAMERS A. The Intent Behind Resolution VI B. The Proposed Power of Incorporation in Cases When "Individual States May be Incompetent" IV. JACK BALKIN, ORIGINAL PUBLIC MEANING AND RESOLUTION VI A. James Wilson's "General Principle" of Federal Power B. The Two Versions of James Wilson's Speech CONCLUSION INTRODUCTION Currently, the Supreme Court interprets federal power under Article I, Section 8 in a manner that emphasizes both limited textual enumeration (1) and the need for judicial maintenance of the line between federal and state authority. (2) Recently, however, a group of influential constitutional scholars including Jack Balkin, Robert Cooter, Andrew Koppelman, Neil Siegel and others have suggested that courts ought to embrace Resolution VI of the 1787 Virginia Plan as the guiding principle for interpretation or construction of federal power under Article I, Section 8. (3) According to Resolution VI, federal power should be construed to reach all matters involving the "general interests of the Union," those "to which the States are separately incompetent" and those affecting national "harmony." (4) As described by most of its advocates, Resolution VI authorizes Congress to regulate all collective action problems of national importance. (5) In support of their claims, Resolution VI scholars argue that the members of the Philadelphia Convention adopted the resolution and sent the same to the Committee of Detail with the expectation that the resulting text would be based on this overriding principle of national power, and that they accepted the text of Article I, Section 8 as the enactment of Resolution VI. …

Appellate Courts as First Responders: The Constitutionality and Propriety of Appellate Courts' Resolving Issues in the First Instance

Abstract: In designing court systems in this country, all of the states and the federal government have created trial courts and one or more levels of appellate courts. Legal professionals, litigants, and the people of this country in general typically conceive of appellate courts as courts of review, courts that review decisions made by trial court judges, by decision makers in administrative agencies, or occasionally by arbitrators. We view it to be the role of trial judges and juries, administrative agencies, and arbitrators--not appellate courts--to make the initial findings of fact, reach the initial conclusions of law, apply the law to the facts in the first instance, and exercise discretion as to issues, raised in the foundational proceeding, whose resolution is not dictated by rules of law. We then see it as the function of courts of appeals acting as such to re-examine fact-findings, conclusions of law, applications of law to fact, and exercises of discretion under appropriate standards of review. (1) We generally expect courts of appeals to affirm, reverse, or vacate the judgment of lower courts or other tribunals, but not to act as a court of first instance in finding facts, stating the law, or exercising other judicial functions. (2) Appeals courts sometimes review for clear error, and sometimes review for abuse of discretion. When reviewing agency action they may review for arbitrary and capricious action or for substantial evidence. (3) Even when review is de novo, so that the appeals court is giving no deference to the lower tribunal's conclusion, that earlier conclusion is being reviewed. The appeals court does not merely announce what a correct understanding of the law is. A lower court has taken the first stab at the issue, and the appeals court concludes that the trial court judge (or other decision maker) (4) either erred or reached the correct, or an acceptable, answer. (5) The appeals court has the benefit of the lower court's thinking and is passing judgment upon the lower court's determination. We traditionally defend the division of function between trial and appellate courts on functional and institutional grounds. Despite some evidence that our beliefs about the relative superiority of particular decision makers are not always accurate, (6) as a society we generally believe and historically we generally have believed that trial courts--judges and juries--have advantages in making fact findings, so we allow appellate courts to review fact-findings but only to avoid severe aberrations, violations of duty, and clear errors that would result in injustice to the parties. We make the review deferential to give effect to our belief that judges and jurors who were firsthand witnesses to the testimonial evidence and arguments usually have a superior ability to accurately find the facts. (7) For reasons of consistency and in deference to trial court experience and expertise in fact-finding, we take the same tack, making review deferential--although perhaps not to exactly the same degree--even when all of the evidence is documentary or is otherwise available to appellate court judges in the same form in which it was presented to the trier of fact. Technological advances that can put appellate judges in shoes that very much resemble those of jurors and trial judges raise questions about whether appellate courts should defer to judges and juries as they traditionally have done, but thus far, and for the most part, appellate courts have remained deferential. (8) Appellate courts utilize varying degrees of deference when reviewing matters that are within the district courts' discretion, depending on the reasons that discretion is afforded and sometimes based upon other policy considerations. Finally, appellate judges typically are authorized and expected to review questions of law de novo because, as a society, we believe that appellate judges have advantages over trial judges in deciding what the law is or should be. …

The Malleability of Collective Litigation

Abstract: In Wal-Mart v. Dukes, (1) Wal-Mart avoided class action because employment decisions were made by local supervisors. However, it was Wal-Mart who chose to delegate discretion; by doing so, it made class litigation less likely. Wal-Mart's choice of business administration, then, substantially reduces its expected liability. This is but one example of a broader, overlooked phenomenon. Mass defendants can control, before the occurrence of damages, the scope of future collective litigation. Collective litigation procedures are malleable, sensitive to the defendant's pre-damages choice of actions. This Article develops and substantiates this insight. This Article elaborates on two manifestations of this phenomenon. First, defendants can avoid class actions by "individualizing" the prospective class, injecting individual differences that preclude class treatment. Second, defendants can selectively contract with future victims, buying out the stronger, leaving only weak victims with a claimable right, and reducing the prospective class's capacity to litigate. Against this backdrop, this Article proposes an array of mechanisms to strengthen collective litigation procedures, including shifting the burden to defendants to justify the business action that prevented collective litigation, and taxing defendants for making the plaintiffs' case weaker. TABLE OF CONTENTS INTRODUCTION I. THE CONVENTIONAL STORY AND THE ROLE OF COLLECTIVE LITIGATION A. Mass Defendants' Inherent Litigation Advantages 1. Unequal Economies of Scale 2. Selective Settlements--"Cherry-Picking" Plaintiffs. B. Defendants' Litigation Advantages as a Social Problem C. The Solution: Collective Litigation II. DOCTRINE-BASED MALLEABILITY--"INDIVIDUALIZING" THE CLASS A. The Crucial Class Certification Standards 1. Overview 2. Individual versus Common Questions B. Inducing Factual Differences--"Individualizing" the Class 1. Individualizing Written Contracts 2. Creating Choice of Law Differences 3. Varying Oral Communication 4. Heterogeneous Plaintiffs and Products 5. Decentralizing Action III. SELECTIVE PRE-DAMAGES CONTRACTS A. Ex ante Divide-and-Conquer B. Examples 1. Nuisances 2. Products Liability: Disclaimers and Standard-Form Contracts IV. NORMATIVE IMPLICATIONS A. Litigatory Damages B. Judicial Discretion 1. Certifying Individualized Classes 2. Suspicion toward Waivers and the Contemporary Law C. Class-Wide Solutions 1. Individualizing Course of Action 2. Selective Pre-Damages Contracts CONCLUDING REMARKS. INTRODUCTION During the 2011 term the Supreme Court ruled on the largest civil rights class action suit in U.S. history. (2) In "one of the most expansive class actions ever," (3) hundreds of thousands of women claimed that Wal-Mart--the world's largest private employer (4)--discriminated against them on pay and promotions in "literally millions of employment decisions." (5) However, the main issue before the Justices was not substantive, but procedural. Courts do not automatically authorize class litigation; they first have to certify a lawsuit as a class action. The Wal-Mart certification debate centered on the following question: whether these scores of women "have enough in common to join together in a single lawsuit." (6) As Wal-Mart conferred pay and promotion discretion on its local managers, the plaintiffs' claims might be too individualized to be pursued collectively. While Wal-Mart argued that plaintiffs "do not have enough in common to warrant class-action treatment," the plaintiffs, naturally, stressed the centralized, company-wide policy behind pay and promotion decisions. (7) These are the rules of the game. This Article moves beyond the Wal-Mart case, which was decided against the plaintiffs, (8) to examine the rules of the game more closely. …

Still Confronting the Consolidation Conundrum

Abstract: "I think it unlikely that the class action will ever be taught to behave in accordance with the precepts of the traditional model of adjudication" --Professor Abram Chayes (1976) (1) "Class actions had their day in the sun and kind of petered out" --Dean Paul Carrington, Reporter, Advisory Committee on Civil Rules (1988) (2) "[The use of class actions is] transforming the litigation landscape Class actions are being certified at unprecedented rates, and they are involving a substantial [number], if not a majority, of all American citizens" --Judge Paul Niemeyer, Chair, Advisory Committee on Civil Rules (1997) (3) "Anyone listening to our opening statements [about class-action litigation] would think that we are talking about two different things The wide differences of the views are astounding, but they happen regularly in the Judiciary Committee" --Rep John Conyers (2012) (4) INTRODUCTION In 1995, I reacted to then-current debates about handling the phenomenon of mass litigation, and in particular the work of the American Law Institute's Complex Litigation project, by suggesting that we were finally confronting the consolidation conundrum (5) I applauded the effort to bring consolidation of separate cases into some conformity with class-action treatment, particularly in terms of when consolidation was appropriate and policing of the handling of the aggregate litigation that would result But I also predicted that the statutory recommendations emerging from the ALI Project were unlikely to be adopted by Congress (6) Much has happened since then In 1996, the Advisory Committee published a set of possible amendments to Rule 23 that included some revisions to class certification standards under Rule 23(b)(3) and the introduction of a new Rule 23(b)(4) to authorize certification solely for settlement (7) Those proposals produced a lot of controversy and a lot of comment; eventually Judge Niemeyer had the commentary published in four volumes that he brought with him when he testified before Congress as quoted above (8) In 1997 and again in 1999, the Supreme Court made important decisions on mass tort class actions (9) In 2003, Rule 23 was amended to deal with procedures attending class certification rather than the criteria for certification (10) In 2005, the Class Action Fairness Act (CAFA) (11) expanded federal-court jurisdiction for class actions asserting claims based on state law and made them subject to federal class-action rules and decisions (12) In 2009, the ALI published its Principles of the Law of Aggregate Litigation, (13) which addresses both class actions and other forms of aggregation In 2010 and 2011, the Supreme Court decided an exceptional number of class-action cases, (14) and it seems that more are on the way (15) Certainly these decisions do not reflect wholehearted enthusiasm for class action, (16) and some see them contributing to "the decline of class actions" (17) At least one piece of legislation has already been introduced in Congress to undo the effects of the Supreme Court's decision in Wal-Mart Stores, Inc v Dukes (18) and facilitate combined litigation in employment discrimination cases (19) On June 1, 2012, as suggested by the quotation above from Rep Conyers, the Subcommittee on the Constitution of the House Judiciary Committee held a hearing focusing on the impact of CAFA and addressing more generally a variety of issues about class-action practice (20) Finally, in early 2012 the Advisory Committee on Civil Rules created a Rule 23 Subcommittee to consider whether some further amendments to the class-action rule might warrant serious consideration (21) Though much has changed, then, much remains the same--aggregation of litigation is still a hot topic Beyond a doubt, the field is rife with issues that could be addressed …

Jurisprudence That Necessarily Embodies Moral Judgment: The Eighth Amendment, Catholic Teaching, and Death Penalty Discourse

Abstract: Despite obvious differences, certain historical and conceptual underpinnings of Catholic death penalty teaching parallel core elements of U.S. death penalty jurisprudence, particularly given the Supreme Court's expansive yet contested moral reasoning in Kennedy v. Louisiana, which stressed that Eighth Amendment analysis "necessarily embodies a moral judgment.'" (1) This Article compares that jurisprudence with the Catholic Church's present, near-absolute opposition to capital punishment, assessing how the death penalty, as a quintessential law and morality question, implicates overlapping sources of moral reasoning. It then identifies substantive concepts that permit Eighth Amendment jurisprudence and the Catholic perspective to be mutually translated, presenting this approach as a means to advance death penalty discourse. INTRODUCTION The legal implications of religion's often contested presence in the public square remain at the forefront of national consciousness. Prominent examples of this within the past year include debate over the Obama administration's decision not to exempt all but a narrow class of religiously-affiliated employers from the new health care law's mandate to provide insurance coverage for contraception, (2) and the Supreme Court's interpretation of the Religion Clauses' application to employment decisions in Hosanna-Tabor Evangelical Lutheran Church v. EEOC. (3) Religion's salience to both the form and substance of important legal debates is no less the case with respect to the death penalty. As Professor David Garland has argued, "religiosity and moralism" are among "recurring themes that feature prominently in the American public sphere ... [a]nd ha[ve] a bearing on the punishment of offenders and on death penalty politics." (4) Accordingly, "[t]o understand today's American death penalty ... we must try to see its moral power, its emotional appeal, its claim to be doing justice." (5) In comparing U.S. jurisprudence with Catholic death penalty teaching, this Article aims to contribute to such understanding. (6) Over four years after Baze v. Rees (7) ended a brief, de facto national moratorium on executions, (8) the moral, including religious, dimensions of capital punishment remain both poignant and contested. (9) Death penalty opponents succeeded at placing an abolition initiative on the November 2012 ballot in California--both the nation's largest state and the state with the largest population of inmates awaiting execution--and secured over 100 endorsements of repeal from faith and religious organizations. (10) In Connecticut, which in April 2012 became the most recent state to repeal its death penalty statute by legislation, New York Times coverage included a photo of religious leaders opposed to capital punishment praying at a rally as Connecticut's Senate debated the abolition bill. (11) Senator Gayle Slossberg, a one-time death penalty proponent, was described as "wrestling with the moral implications of capital punishment" before concluding that its abolition "'set[s us] ... on the path to the kind of society we really want for our future.'" (12) Senator Edith Prague, also an initial opponent of repeal who considered the death penalty to be "a moral issue," attributed her changed position to discomfort at the prospect of "'be[ing] part of a system that sends innocent people ... to the death penalty.'" (13) In declaring in November 2011 that he would permit no executions to proceed while still in office, Oregon Governor John Kitzhaber explained that he "cannot participate ... in something [he] believe[s] to be morally wrong." (14) In March 2011, longtime death penalty supporter Governor Pat Quinn expressly acknowledged his Catholic faith in forming his decision to sign a bill abolishing the Illinois death penalty. (15) Whether coincidental or not, the state that abandoned the death penalty prior to Illinois was New Mexico, in 2009, where analysts cited strong religious opposition behind abolition, and where the governor who signed the legislation, Bill Richardson, is also Catholic. …

The Anti-Messiness Principle in Statutory Interpretation

Abstract: Many of the Supreme Court's statutory interpretation opinions reflect a jurisprudential aversion to interpreting statutes in a manner that will prove "messy" for implementing courts to administer. Yet the practice of construing statutes to avoid "messiness" has gone largely unnoticed in the statutory interpretation literature. This Article seeks to illuminate the Court's use of "anti-messiness" arguments to interpret statutes and to bring theoretical attention to the principle of "messiness" avoidance. The Article begins by defining the concept of anti-messiness and providing a typology of common anti-messiness arguments used by the Supreme Court. It then considers some dangers inherent in the Court's use of anti-messiness arguments to reject otherwise plausible statutory constructions. Last, the Article explores how the anti-messiness principle fits within existing theories of jurisprudence and statutory interpretation and discusses how attentiveness to anti-messiness might add greater texture to prominent theories of statutory interpretation. INTRODUCTION In its 2009 term opinion in Hertz Corp. v. Friend, (1) the Supreme Court unanimously adopted a presumption that the place where a corporation maintains its headquarters is its "principal place of business" (2) under the federal diversity jurisdiction statute. (3) In so ruling, the Court relied heavily upon "the need for judicial administration of a jurisdictional statute to remain as simple as possible." (4) The Court's opinion--and, indeed, the Justices' questions at oral argument (5)--displayed an overt preference for the statutory construction that would prove simplest to apply. A "headquarters" presumption was best, the Court argued, because it "points courts in a single direction" so they "do not have to try to weigh corporate functions, assets, or revenues different in kind, one from the other." (6) Other, more nuanced "principal place of business" tests were rejected as "difficult to apply" and criticized for their "growing complexity." (7) In layman's terms, the Court's primary justification for embracing the "headquarters" test reduced to the argument that: Other tests are too messy! A presumption that a corporation's headquarters constitute its "principal place of business" is the best statutory reading because it is (relatively) simple and will keep implementing courts from having to engage in intricate, factually-difficult analyses. The Supreme Court's opinion in Hertz is intriguing in its own right, but particularly so because the preference for simplicity that it expresses is quietly familiar: Upon inspection, it turns out that a jurisprudential aversion to messy, complex statutory constructions--or, more accurately, to constructions that require messy factual determinations by implementing courts--can be found lurking in the background of several of the Court's statutory interpretation cases. In other words, when giving content to the words in a statute, the Court regularly eschews definitions, tests, and applications that require intricate factual assessments and favors interpretations that are relatively simple to implement. This "anti-messiness" norm is not limited to the statutory context. It also shows up, in a slightly different form, in the Court's constitutional jurisprudence and it long has played a role in justifying the Court's overruling of troublesome precedents, despite stare decisis concerns. What is interesting about the Court's use of the principle in the statutory context, however, is that (i) the existence of this background norm has gone surprisingly unnoticed in the literature; and (ii) all of the debate surrounding specific invocations of the principle has focused on whether a particular interpretation in fact will prove messy to implement, not on the validity of the norm itself. Messiness avoidance seems to be widely accepted as a legitimate basis for rejecting a statutory construction. Indeed, those who oppose a construction that invokes anti-messiness arguments typically do not challenge the virtues of messiness avoidance. …

What Happens to the "Bad Apples": An Empirical Study of Suspensions in New York City Schools

Abstract: INTRODUCTION The current study grows out of earlier research--conducted by one of us (with a collaborator) and published in book form (1) in 2006--on the following problem: In many public programs that seek to improve social conditions and increase opportunity for low-income people, a relatively small number of participants, whom the study termed "bad apples," (2) so severely disrupt those programs that they prevent the rest of the participants from gaining the programs' full benefits. The public school system is the most important venue in which the bad apples problem occurs, and the current study seeks to increase our understanding of how the system tries to manage this problem. Roughly 1.1 million students are enrolled in the New York City public schools each year. (3) Over the period spanning the 2005-06 and 2009-10 school years, the schools issued 323,680 suspensions, or about 64,736 a year. (4) This works out to significantly less than 5.9% of the total enrolled students in the system during those five years because many of the suspended students were repeat offenders. These suspended students are responsible for a great deal of the time, energy, money, and other resources that the system expends on student discipline and classroom management. Even more importantly, they are presumably responsible for much of the disruptive behavior that impedes classroom learning for all students. Past studies have found that the New York City school system has higher suspension rates for students of color, students who are male, and students with special needs. (5) The system also may fail to ensure that all students, even the more disruptive ones, receive the support they need to succeed academically or to at least complete high school. This study attempts to probe more deeply into the data on suspensions in New York City and to learn how schools use suspensions (to improve behavior, to aid classroom management, to improve test scores, etc.) and, thus, to consider whether and how they can use suspensions more effectively--for example, by issuing them more or less frequently or in different ways. The introduction that follows, taken verbatim from an earlier project, (6) presents some necessary background for the current study: Widespread, intense concern about the harmful effects of disruptive students on their peers is evident in public opinion polls and surveys of both teachers and students. This finding is hardly surprising. The externality and public good aspects of classroom education mean that just as students can learn from each other as well as from their teachers, so too can one student's misconduct quickly cascade through the classroom, thereby reducing learning for all. (7) For purposes of this discussion, we call such chronically disruptive students "bad apples." Although disruptive behavior and discipline problems can be defined in different ways, data sets in this area often distinguish among four crude categories of misconduct: disruption, nonserious violence, violence, and criminal violence. (8) According to one report, more than seventy-seven percent of public elementary and secondary schools suffered at least one violent incident (as defined in the report) during the 1999-2000 year, and students were more likely to fear being attacked at school than being attacked when away from school. (9) Schools that reported a large number of serious discipline problems were more likely to experience violent criminal incidents, including rape, sexual battery, physical attacks, and robbery. (10) Not surprisingly, the risk of encountering violence in school is concentrated in poor areas and is greatest for economically disadvantaged students. (11) Some believe that noncriminal incidents, which are of course far more common than violent crime, are more responsible for disrupting the educational environment and making it more difficult for students to learn. …