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State Spoliation Claims in Federal District Courts
Get PDFThe increasing amounts of electronically stored information (ESI) relevant to civil litigation, and the ease of their loss, caused federal lawmakers explicitly to address the possible consequences of certain pre-suit or post-suit ESI losses. These lawmakers acted in both 2006 and 2015 through Federal Civil Procedure (FRCP) 37(e). But they acted only on certain ESI. Their actions have prompted increasing attention to the significant risks of pre-suit and post-suit losses of all ESI, and of non-ESI, otherwise discoverable in civil actions. In addition, their actions have spurred increasing attention to the availability of substantive law claims involving spoliation of information relevant to future or pending federal civil actions. Such claims complement the federal civil procedure laws on discovery sanctions for information losses.
Federal court jurisdiction over state substantive spoliation claims in related federal civil litigation was expressly invited by the federal judicial rulemakers when amending FRCP 37(e) in 2015. Prior to and since, federal courts have recognized the availability of state spoliation claims for losses of either ESI or non-ESI relevant in pending civil actions.
As state spoliation claims typically involve no federal law question, their pursuit in federal courts may be barred by the lack of, or a failure to exercise, subject matter jurisdiction. Their pursuit may also be stymied by other barriers, including the lack of personal jurisdiction, an inability to effect joinder, and collateral estoppel.
This article explores federal district court power to hear state spoliation claims involving information losses related to and within ongoing civil litigation. It explores whether jurisdictional norms should vary between FRCP 37(e) ESI spoliation and other ESI and non-ESI spoliation. As well, the article examines whether spoliation claims should be comparably available for pre-suit and post-suit losses and for claims against those who are otherwise not parties in the related civil actions, like insurers and attorneys. Finally, it reviews possible joinder, collateral estoppel, and choice of law issues arising when federal courts hear state spoliation claims.
The increasing amounts of electronically stored information (ESI) relevant to civil litigation, and the ease of their loss, caused federal lawmakers explicitly to address the possible consequences of certain pre-suit or post-suit ESI losses. These lawmakers acted in both 2006 and 2015 through Federal Civil Procedure (FRCP) 37(e). But they acted only on certain ESI. Their actions have prompted increasing attention to the significant risks of presuit and postsuit losses of all esi, and of nonesi, otherwise discoverable in civil actions. In addition, their actions have spurred increasing attention to the availability of substantive law claims involving spoliation of information relevant to future or pending federal civil actions. Such claims compliment the federal civil procedure laws on discovery sanctions for information losses.
Federal court jurisdiction over state substantive spoliation claims in related federal civil litigation was expressly invited by the federal judicial rulemakers when amending FRCP 37(e) in 2015. Prior to and since, federal courts have recognized the availability of state spoliation claims for losses of either ESI or non-ESI relevant in pending civil actions.
As state spoliation claims typically involve no federal law question, their pursuit in federal courts may be barred by the lack of, or a failure to exercise, subject matter jurisdiction. Their pursuit may also be stymied by other barriers, including the lack of personal jurisdiction, an inability to effect joinder, and collateral estoppel.
This article explores federal district court power to hear state spoliation claims involving information losses related to and within ongoing civil litigation. It explores whether jurisdictional norms should vary between FRCP 37(e) ESI spoliation and other ESI and non-ESI spoliation. As well, the article examines whether spoliation claims should be comparably available for presuit and postsuit losses and for claims against those who are otherwise not parties in the related civil actions, like insurers and attorneys. Finally, it reviews possible joinder, collateral estoppel, and choice of law issues arising when federal courts hear state spoliation claims
Leahy Hall - The Law Library (1960s)
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Law Library in McMahon Hall (undated)
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Teaching About Justice by Teaching with Justice: Global Perspectives on Clinical Legal Education and Rebellious Lawyering
Get PDFTeaching About Justice by Teaching with Justice: Global Perspectives on Clinical Education and Rebellious Lawyering is co-authored by cadre of clinicians from around the world: Catherine F. Klein, Richard Roe, Mizanur Rahman, Dipika Jain, Abhayraj Naik, Natalia Martinuzzi Castilho, Taysa Schiocchet, Sunday Kenechukwu Agwu, Olinda Moyd, Bianca Sukrow, and Christoph König. The piece captures and reflects the content of five presentations at the 2021 Global Alliance for Justice Education (GAJE) biannual gathering, conducted virtually due to the pandemic, with over 450 participants from 45 countries. The piece illuminates many themes and issues in the teaching and practice of transformational justice and community lawyering as observed and lived by a number of law school faculty and their students around the world. The article includes faculty who are involved in an ongoing critique of legal education and the theories that drive it. The authors share illustrations of some experiments and articulate some of the important and fundamental questions about how best to teach about justice by teaching with justice and the legal impact this teaching can engender. The authors emphasize the dynamic, ongoing reflection and experimentation needed to truly embrace being a rebellious, transformative lawyer (or rebellious, transformative law teacher) and challenge clinicians and legal educators to embrace systemic—even radical—change in their lawyering and in the methodology to teach and achieve justice
À la Carte Cable: A Regulatory Solution to the Misinformation Subsidy
Get PDFAlthough “fake news” is as old as mass media itself, concerns over disinformation have reached a fever pitch in our current media environment. Online media outlets’ heavy reliance on user-generated content has altered the traditional gatekeeping functions and professional standards associated with traditional news organizations. The idea of objectivity-focused informational content has primarily been substituted for a realist acceptance of the power and popularity of opinion-driven “news.” This shift is starkly visible now: mainstream news media outlets knowingly spread hoaxes, conspiracy theories, and the like.
This current state of affairs is not some freak accident. The Supreme Court’s First Amendment jurisprudence has led us here. For example, the Court’s decision in Reno v. ACLU subjects government regulation of online speech to strict scrutiny review, hamstringing nearly any attempt at regulation (much less censorship) of online speech by the government. Similarly, content regulation of televised media is covered by the First Amendment’s capacious protections. And while broadcast media was once heavily regulated for content, the FCC’s adoption of deregulation resulted in the eventual repeal of a range of content limitations and requirements for licensees.
Designing a content-neutral scheme to regulate media content directly is not only a complex legal problem, but it is also likely a non-starter. State actors are (rightly) unable to censor or remove content based on the ideological leanings of the content, and media disinformation directly implicates political speech about controversial topics. In an era where cross-platform news media is ubiquitous, the legal status quo has effectively ensured media platforms have near-total discretion to control—or more accurately, not control—the truthfulness of disseminated content.
However, a market-based, bottom-up approach to content regulation could end-run the problems that plague government regulation of cable media. Industry research has suggested that cable “news” outlets generate more revenue from per-subscriber fees applied by cable companies than from advertising carried by those channels. In terms of cable news, per-channel costs are the highest costs in a monthly cable bill. This means that more than eighty million cable subscribers subsidize content that attracts fewer than two million viewers daily, including misinformation.
This paper posits “à la carte” cable packaging as a solution to the subsidy of disinformation. Currently, cable subscribers are forced to buy programming channels even when they would rather not. This is particularly troubling in the case of news information because subscribers who wish to receive some programming are forced to subsidize other news content that may be objectionable. The resulting system of reverse compelled speech means that news organizations keep their subsidy while advocating against the interests of those footing the bill. Eliminating this involuntary subsidy flips the status quo on its head by making trustworthiness part of the bottom line, incentivizing prudent news self-regulation in an entirely content-neutral manner
Election 2022: What Happened? What\u27s Next?
No full textOn November 15, the Law and Public Policy Program (LPP) at Catholic Law held a discussion looking at the results of the 2022 midterm elections with two plugged-in alumni. This was the third installment of LPP\u27s lecture series this fall. Brian Svoboda, Director of LPP, introduced John Murphy III \u2707, Chief Policy Officer and Healthcare Counsel, Biotechnology Innovation Organization, and Mark Patterson \u2790, Senior Advisor, the Brunswick Group, to the students in attendance. The program was also sponsored by the American Constitution Society, the Democratic Law Students Association, and the Federalist Society
Abortion and the Meaning of Life: Some Anthropological Implications of the Viability Standard
No full textOn March 3, 2022, the Catholic Law community gathered for the second program in the lecture series organized by the Law and the Human Person examining The Future of Roe v. Wade? Dobbs v. Jackson Women’s Health Organization. The afternoon program entitled, “Abortion and the Meaning of Life: Some Anthropological Implications of the Viability Standard,” featured David Crawford, J.D., S.T.D., Dean and Associate Professor of Moral Theology and Family Law at Pontifical John Paul II Institute for Studies on Marriage & Family, who discussed the anthropological implications of the Dobbs v. Jackson case. Crawford teaches and writes in the areas of fundamental moral theology, bio- and sexual ethics, marriage and family, and law
The Economics of Information and the Meaning of Speech
Get PDFIn common usage the communication of information is not sharply distinguished from the use of language or speech to make factual or propositional statements. So it should come as no surprise that one of the main legal justifications for protecting speech--that it underwrites a “marketplace of ideas” and thereby contributes to the search for truth--has strong parallels in the economic theory of information. “Indeed,” as Kenneth Arrow writes, “the market system as a whole has frequently been considered as an organization for the allocation of resources; the typical argument for its superiority to authoritative central allocation has been the greater intake of information through having many participants.”
As it turns out, however, the concept of information in the extensive literature on information theory, communications engineering, and mathematical statistics is ill-suited to serve as the conceptual underpinning for a marketplace of ideas. To make this argument, I analyze and discuss the scientific notion of information, especially in its capacity as a commodity that can be exchanged on a market; I then turn to the special constitutional and statutory protections for speech, especially those based or premised on a “marketplace of ideas”--the defining theory of protected speech.
As I conclude, the prospects for developing a marketplace of ideas within standard economic theory are decidedly gloomy. “The chief point made here,” Arrow reminds us, “is the difficulty of creating a market for information if one should be desired for any reason.” “The presumption that free markets will lead to an efficient allocation of resources is not valid in this case.” Information theory cannot underwrite even a “marketplace of information,” much less a marketplace of ideas
