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Mass Tort Litigation, Chapter 11, and Good Faith: Let Not Perfect Be the Enemy of Pretty, Pretty Good
Get PDFSoon after enactment of the current Bankruptcy Code, Chapter 11 emerged as the forum of choice for companies seeking to resolve the otherwise intractable problems associated with mass tort liability. In recent years, the enactment of state law divisive merger statutes opened a new era in the evolution of mass tort liability cases. Specifically, companies could create a new entity that would assume responsibility for all outstanding tort claims, thus keeping the parent firm out of bankruptcy entirely. This practice, colloquially referred to as the Texas Two-Step, gained widespread notoriety when Johnson & Johnson placed its new subsidiary, LTL Management, LLC, into Chapter 11 to aggregate and resolve tens of thousands of asbestos claims arising from the use of its Baby Powder product. The filing produced a firestorm of criticism along the lines that the tactic was being used to escape accountability and reduce payouts to tort victims.
After the Third Circuit dismissed the case as a bad faith filing, Johnson & Johnson tried again, but to no avail. Refusing to throw in the towel, and perhaps testing the definition of insanity, the company filed yet a third case. This time, however, Johnson & Johnson, obtained in advance the support of about 83 percent of current tort claimants for its proposed bankruptcy plan. The case is now pending.
In this Essay, I take the contrarian view that the Texas Two-Step is not inherently evil and might simply represent the latest development in the management of mass tort claims through the bankruptcy system. While the potential for abuse exists, as with any tactic, it has yet to manifest itself in the Texas Two-Step cases filed so far, and, if properly monitored and controlled by the court, the maneuver could produce more timely settlements and superior value for all concerned
Gray Advice
Get PDFDebates over economic protectionism or the technology flavor-of-the-month obscure a simple, urgent truth: people are going online to find help that they cannot get from legal and health professionals. They are being let down, by products with festering trust and quality issues, by regulators slow to apply consumer protection standards to harmful offerings, and by professionals loath to acknowledge changes to how help is delivered. The status quo cannot continue. Waves of capital and code are empowering ever more organizations to build digital products that blur the line between self-help and professional advice. For good or ill, “gray advice” is changing how ordinary people get help with legal issues and healthcare issues, and even how they perceive professionals. This Article begins the work of articulating what makes a high-quality digital advice product, and how regulators and professionals can engage with the reality of how people seek and find help today
A Great American Gun Myth: Race and the Naming of the “Saturday Night Special”
Get PDFAt a time when Second Amendment doctrine has taken a strongly historical turn and gun rights advocates have increasingly argued that gun regulation itself is historically racist, it is especially important that historical claims about race and guns be taken seriously and vetted appropriately. In this short article, we evaluate the often-repeated claim that the nickname “Saturday Night Special” derives from the phrase “[n___er]-town Saturday night.”
Based on a review of newspapers, legislative debates, dictionaries, slang compendiums, and other sources, we find no historical support for this claim. It apparently appeared for the first time, unsourced, in a 1976 article and has been repeated in dozens of briefs and scholarly sources since. Advocates and scholars should stop invoking this unsupported origin story, which if anything serves as a cautionary example of how citations can cascade. The most plausible origin of the nickname as it related to cheap firearms stemmed from the turn of the century when the phrase “Saturday-night special” was already in common usage with connotations of cheapness and convenience
Evidence-Based Transitional Justice: Incorporating Public Opinion into the Field, with New Data from Iraq and Ukraine
Get PDFThe field of “transitional justice” refers to a range of processes and mechanisms for accountability, truth-seeking, and reconciliation that governments and communities pursue in the aftermath of major societal traumas, including civil war, mass atrocities, and authoritarianism. This relatively new field emerged in the 1980s as scholars, practitioners, and policymakers looked for guidance to support post-authoritarian and post-communist transitions to democracy in Eastern Europe and Latin America. Since then, the field has grown rapidly—so rapidly that it is outpacing its capacity to learn from past mistakes. Recent methodological advances in the study of public attitudes about transitional justice through quantitative surveys and qualitative interview methods provide unprecedented insights into how different mechanisms—including domestic and international prosecutions, truth commissions, amnesty laws, and compensation—are perceived by their intended beneficiaries. The results have been troubling. Numerous studies in diverse contexts found that some of the most well-known transitional justice mechanisms, including those employed in South Africa, Rwanda, and Cambodia, failed to achieve their objectives of peacebuilding and reconciliation. In some cases, these policies had harmful consequences for their intended beneficiaries, including retraumatization and perceived “justice gaps” between victims’ preferred remedies and their actual outcomes.
There is an urgent need for the field of transitional justice to learn from this growing body of empirical research to develop evidence-based policies and programs that achieve their intended objectives. This Feature critically reviews the intellectual development of the field, consolidating empirical findings of relevant studies across disciplines—law, political science, sociology, economics, public health, psychology, and anthropology—and identifying open debates and questions for future research. We focus on research about public attitudes toward transitional justice in the communities directly impacted by conflict. In addition to reviewing previous research, we present new data from original public opinion surveys in Iraq and Ukraine relevant to ongoing transitional justice efforts in those countries. We use this evidence to identify lessons learned, including mistakes, in the design and implementation of previous transitional justice processes. We conclude by discussing the normative and prescriptive implications of our findings for efforts to improve future transitional justice laws and policies
Bruen\u27s Enforcement Puzzle: Unearthing and Adjudicating the Historical Enforcement Record in Second Amendment Cases
Get PDFThe Supreme Court’s 2022 decision in New York State Rifle & Pistol Ass’n v. Bruen brings historical complexity to the fore by instituting a history-focused test for the Second Amendment that demands analogues from the Founding or Reconstruction eras to support modern gun regulations. The majority opinion in Bruen considers, in multiple places, how certain historical gun regulations may have been enforced. In each instance, the Court suggests that evidence of racially disparate enforcement of a historical law is relevant to whether that law is part of the American historical tradition and an appropriate analogue. Historical enforcement data appear to be part of a larger inquiry into possible discriminatory taint, an issue the Court has previously addressed in the historical context in cases dealing with criminal procedure, voting rights, and equal protection. This Article seeks to identify lessons from these other areas of constitutional law to inform the treatment of enforcement evidence in Second Amendment cases after Bruen, where questions of historical enforcement can be especially nuanced.
The Article makes three major contributions to the existing literature. It is the first in-depth scholarly examination of how Bruen treats enforcement evidence within its historical-tradition test, including by appearing to place the burden of proving non-discrimination on the government. Second, the Article identifies Bruen’s focus on possible discriminatory enforcement as a subspecies of historical discriminatory “taint” or legislative animus arguments and explores how Bruen may depart in important ways from the Court’s past practice. Finally, the Article uses original archival research into the local enforcement of North Carolina’s 1879 concealed-carry ban as a case study to demonstrate how assessing possible discriminatory taint for facially neutral historical laws presents unique challenges and to examine whether Bruen’s approach is well suited to appreciate and address such complexity
The Limits of the Bank Service Company Act
Get PDFModern banks rely on numerous third-party service providers. They host data using cloud services, rely on clearinghouses to settle financial transactions, and automate their operations using financial technology and artificial intelligence. Alongside convenience, cost savings, and sophistication, reliance on these service providers brings risks. Dysfunction in third-party services can lead to data breaches, core service outages, or—potentially—systemic risk. And the odds of these risks coming to fruition only increase as the market for service provision becomes more concentrated.
However, one clause of a little-studied antitrust statute from the 1960s provides regulators with the ability to supervise third-party services. This statute—the Bank Service Company Act—stands as a bulwark against third-party risk: when banks export enumerated services to third parties, the bank regulators may supervise the services as if the bank itself were performing them. This Note provides a comprehensive history of the Act and a detailed explanation of its current application. Focusing on three main areas—scope, enforcement, and transparency—this Note finds the statute’s outer limits and recommends changes based on these limits. While some parts of the Act, including its enforcement powers and scope, should be revised, agency action could improve transparency around services and service providers even under the statute’s current form
Originalism and Historical Fact-Finding
Get PDFHistorical facts are more central to constitutional litigation than ever before, given the Supreme Court’s increasing reliance on originalism and other modes of interpretation that invoke historical practice and tradition. This raises a central tension. The case for originalism has rested largely on the idea that it is simultaneously fact-bound and a theory of adjudication capable of resolving questions of constitutional law. In practice, however, the historical facts central to originalism typically are not litigated in accordance with standard practices for fact-finding: introduction at trial, expert testimony, adversarial testing, deference on appeal, and so on.
In the absence of the usual fact-finding protocols, many recent Supreme Court rulings have based the scope of constitutional rights on claims of historical fact—with those claims drawn primarily from amicus briefs and involving some serious factual errors. This is significant in two broad sets of cases: those that rely on history to apply a constitutional rule (as lower courts are doing with the historical-analogical test prescribed by New York State Rifle & Pistol Ass’n v. Bruen) and those that rely on history to set the content of a constitutional rule (for example in Dobbs v. Jackson Women’s Health Organization’s rejection of a constitutional right to abortion). The latter—which involve what we call “declarative historical fact”—have become especially prominent in recent years.
In this Article, we explore the promise and peril of treating historical fact-finding like other kinds of fact-finding in our legal system. Doing so calls into doubt originalism’s near-exclusive focus on historical fact-finding at the appellate level, informed by amicus briefs and judges’ or Justices’ own historical research. Our legal system gives trial courts primary authority over fact-finding, and many trial judges attempting to implement the Supreme Court’s originalist decisions have turned to historians as experts, holding hearings and calling for briefing at the trial level. Such trial-level historical fact-finding imposes serious burdens and faces significant limitations, but also has important institutional and constitutional advantages over appellate findings of historical fact.
In addition to emphasizing the proper role of trial courts, our analysis suggests a more important role for Congress both in finding historical facts and in regulating appellate review of historical facts. Courts arguably owe deference—perhaps substantial deference—to congressional fact-finding, and it is not immediately apparent why historical fact-finding should be any different. Congress might also legislate standards of review for judicial fact-finding, including for historical facts used in constitutional litigation. This type of “fact stripping,” a form of jurisdiction stripping, is consistent with congressional power over Article III courts, as we have developed in prior work.
If originalism is to maintain its claim on being fact-based, it must grapple with these fundamental issues regarding the litigation of facts in our legal system. If it is not practically possible for judges to develop a sound record of historical facts, then any approach to interpretation relying on such facts will not produce convincing, legitimate, or lasting interpretations of the Constitution
