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Penny Pinchers or Conflict-Free Crusaders? Why the Eleventh Circuit Eliminated Service Awards for Class-Action Representatives
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The Law According to She-Hulk
Get PDFFirst introduced in Marvel comics in 1979, Jennifer Walters is the fictional character best known as the She-Hulk. Her profession is an attorney. While this article occasionally draws from source material elsewhere in the Marvel comics, its primary focus is the third She-Hulk series, which was published in twelve issues from 2014 to 2015. This series is considered to be the most legally focused of the She-Hulk series and was written by an attorney, Charles Soule. Soule himself describes the series as “a book starring a superhero who rarely super heroes. Instead of that, she *gulp* lawyers.”
As is normal with any work of fiction that depicts attorneys at work, the law in the She-Hulk series deviates from the actual law that exists in the world in which we live. That does not mean, however, that Soule ‘got the law wrong.’ Rather, it should be assumed that he got the law right for She-Hulk’s universe. He is, after all, the author of the series, and an author creates the rules of his characters’ universe
“Contractually Valid” Forum Selection Clauses
Get PDFIn Atlantic Marine Construction Company v. United States District Court, the Supreme Court held that a “contractually valid” forum selection clause should be enforced by federal courts absent extraordinary circumstances. Unfortunately, the Court provided no guidance on how to assess whether a clause is “contractually valid.” This Article fills the gap. It argues that the answer to this question turns on three separate inquiries. First, a court should determine whether the forum selection clause is valid. Second, the court should interpret the forum selection clause to determine whether it is exclusive and applies to the claims asserted. Third, the court should evaluate whether the forum selection clause is enforceable. Until each of these inquiries is complete, it is impossible to know whether a clause is “contractually valid” as that term is used in Atlantic Marine.
The third inquiry—relating to enforceability—is arguably the most complex. In an attempt to demystify it, the Article draws upon an original, hand-collected dataset of 658 federal cases decided after Atlantic Marine to evaluate how the federal courts resolve cases where one party challenges the enforceability of a forum selection clause. The cases in this dataset show that forum selection clauses are enforced roughly eighty-eight percent of the time. They also show that federal courts are reluctant to strike down forum selection clauses for being unreasonable. This reluctance, combined with other doctrinal innovations that favor the enforcement of these clauses, means that the current legal regime overwhelmingly and unduly favors the large corporations that write forum selection clauses into their agreements with customers and employees. In an attempt to address this imbalance, the Article urges the lower federal courts to adopt a number of specific reforms—none of which requires intervention by Congress or the Supreme Court—that would help to level the playing field