Tuesday, December 22, 2015

DirecTV v. Imburgia

By Professor Hiro Aragaki
Originally published on Indisputably

On Monday, the Court handed down DirectTV v. Imburgia, which now succeeds AT&T Mobility v. Concepcion, 131 S. Ct. 1740 (2011) as the latest substantive decision from the Court on Federal Arbitration Act (FAA) preemption. The case is interesting for a number of reasons, not least of which is that it makes it increasingly clear that the core logic of FAA preemption is one of antidiscrimination.

DirecTV held that the California Court of Appeal’s construction of a condition precedent in the parties’ arbitration agreement was preempted by the FAA. Writing for the majority, Justice Breyer clearly believed that the California appellate court had gotten its own state’s law of contract construction wrong. But he conceded—as he had to—that a federal court cannot sit in judgment of a state court decision on state law. So it was not enough simply to say that the decision was irrational and just plain wrong (which it was in my opinion as a contracts professor). There had to be a reason why the decision conflicted with the FAA.

Monday, December 21, 2015

What I Want for Christmas is...

By Professor Katherine Pratt

This op-ed was originally published in the Dec. 24, 2009 edition of the Los Angeles Daily Journal. It is republished annually in keeping with season's spirit of giving

Nothing. Well, not exactly nothing--just nothing for me. What I really want for Christmas is for more holiday gift-givers to honor their family, friends and business contacts by making charitable contributions on their behalf instead of buying them material gifts. Members of my family recently exchanged the names of our favorite charities and agreed to make charitable contributions this year, in lieu of our usual Christmas gifts. Now I have started to think about how this could happen on a much larger scale.

Societal norms currently favor material gifts over charitable contributions to honor someone. A gift-giver often has no way of knowing whether friends, family, and business contacts would prefer a material gift or a charitable gift in their honor. Also, a gift-giver might be concerned about appearing cheap and selfish if she substitutes a tax deductible donation for a non-deductible material gift. When in doubt, gift-givers make the "safe" gift choice and give material presents. On the gift recipient's side, there typically is no easy, socially acceptable way of communicating to gift-givers a preference for a charitable contribution. This is especially true with respect to gifts for business associates, clients and professionals such as doctors.

Thursday, December 17, 2015

Reflections on the Chan Zuckerberg Initiative

By Professor Ellen P. Aprill
Originally published on TaxProf Blog
A little more than two weeks have passed since Priscilla Chan and Mark Zuckerberg announced that they would give away 99% of their Facebook stock, currently valued at $45 billion, during their lives. This distance, albeit short, gives time to reflect back on what the Chan Zuckerberg Initiative is and what it is not.

Early coverage, particularly headlines, suggested that Chan and Zuckerberg had made a current donation to charity. Facebook quickly worked to correct this erroneous impression. The Chan Zuckerberg Initiative involves a transfer to Delaware LLC, a limited liability company, not a public charity or private foundation. For tax purposes, the transfer to the LLC is a tax nothing; it has no effect on the couple’s taxes. As Professor Michael Graetz stated Mr. Zuckerberg “has moved money from one of his pockets to another.” Chan and Zuckerberg have given nothing away yet.

Friday, December 11, 2015

Prof. Glazier Files Amicus Brief in Nashiri Military Commission Trial

Professor David Glazier recently filed an amicus brief with the U.S. Court of Appeals for the District of Columbia in the case of Abd al-Rahim Hussein Al Nashiri v. Barack Obama, et. al. 


Domestic and international law have confined military commission jurisdiction to acts taking place during, and directly related to, an ongoing armed conflict. Acts subject to military commission jurisdiction constitute serious violations of the law of war which have recognized penal sanctions associated with their violations, commonly called “war crimes.”

Abd al-Rahim Hussein Al Nashiri ("Nashiri") is facing military commission trial at the U.S. Naval Station at Guantánamo Bay for three incidents that transpired in or near Yemen between 2000 and 2002: the attempted bombing of the USS The Sullivans on January 3, 2000; and the completed bombings of the USS Cole and the French tanker M/V Limburg on October 12, 2000 and October 6, 2002, respectively.

The military commission seeks to try Nashiri for nine charges defined by the Military Commissions Act of 2009, Pub. L. 111-84 §§ 1801-1807 (2009) ("2009 Act") (codified at 10 U.S.C. §§ 948a, et seq.). While charges based on the attempted attack on the USS The Sullivans and the completed attacks on the USS Cole and French tanker M/V Limburg qualify for federal criminal prosecution by Article III courts, these acts fall outside the recognized scope of an armed conflict, a necessary prerequisite for law of war military commission jurisdiction. As detailed below, the United States was not involved in armed conflict during the timeframe of the earlier incidents, nor does the post-9/11 attack on the Limburg, a French tanker under charter to a Malaysian entity, fall within the scope of any armed conflict. Charges based on these incidents thus cannot constitute “war crimes” and fall outside both the constitutional jurisdiction of the military commissions and the statutory ambit of the 2009 Act which limits the commissions to trying offenses “committed in the context of and associated with hostilities.”

Read the full brief below.

Wednesday, December 9, 2015

Why Abigail Fisher’s lawsuit is a modern day Trojan Horse

By: Professor Kimberly West-Faulcon
 Originally published on The Grio
Today, the Supreme Court will hear arguments in yet another racial affirmative action case involving college admissions. It seems perfectly reasonable for non-lawyers to wonder why these types of cases—cases filed by rejected white applicants alleging a college violated the Constitution by considering race—appear before the Supreme Court so regularly. If I did not teach and write about these cases, I would be left to think that racism against white college applicants is rampant. Why else would the U.S. Supreme Court, the highest court in the land, be hearing so many of these cases? Why else, in the case that will be argued today, would the Supreme Court hear the same case twice? Again, if I did not know all of the specific details of the lawsuit, I would presume that the plaintiff in the case, Abigail Fisher, must have been wronged in some way—why else would she find lawyers and subject herself to the national attention (and ridicule over her less-than-stellar grades and SAT score) that she has endured as people across the nation have debated whether she was indeed qualified to attend the University of Texas at Austin when she applied as a high school student for admission back in 2008.

Loyola Hosts Southern California Business Law Workshop

What is the impact and frequency of recent hedge fund activism? What developments are taking place at the border between public and private markets and companies? Could companies hire CEOs at lower compensation levels by changing their approach to the hiring process? These are some of the questions being discussed today at the Southern California Business Law Workshop hosted at Loyola Law School. Business law scholars from Loyola, USC, UCLA, Pepperdine, Southwestern, UC Irvine, and University of San Diego have gathered to discuss works in progress at the cutting edge of business law and at intersections with other areas of law.

Monday, December 7, 2015

Court to decide principle of one person, one vote

By Professor Jessica Levinson
This is an excerpt from an op-ed published in the Sacramento Bee

A priest, a rabbi and a minister walk into a bar. They each live in a different state Senate district with 100,000 people in each district. There are 80,000 voters in the priest’s district, 50,000 in the rabbi’s district and 20,000 in the minister’s district.

This is not the beginning of a joke, but rather the basis of one of the most important election law cases to hit the U.S. Supreme Court in years.

If two candidates run for state Senate in each district, the priest will have to convince 40,001 of his friends to vote for his preferred candidate. The rabbi, by contrast, will only have to sway 25,001 voters. And the minister has the easiest task; he must only persuade 10,001 voters in order for his preferred candidate to win the election. Put another way, in the priest’s district it takes many more voters to elect the candidate of his choice.

Read the full article here.

Thursday, November 12, 2015

Loyola Law School Hosts Commemoration of Nuremberg Trials

The Center for the Study of Law & Genocide at Loyola Law School, Los Angeles will hold a symposium commemorating the 70th anniversary of the start of the Nuremberg International Military Tribunal on Friday, Nov. 20 from 9 a.m.-3 p.m. It is the only U.S. event to livestream the commemoration proceedings from Nuremberg, Germany and will include remarks from noted genocide authorities and Benjamin B. Ferencz, the last-living Nuremberg prosecutor.

  • Opening Remarks: Hon. Stefan Biedermann, Deputy Consul General, Consulate General of the Federal Republic of Germany
  •  “Nuremberg: How the Impossible Trial Was Made Possible”: Prof. Michael Bazyler, Professor of Law and The 1939 Society Scholar in Holocaust and Human Rights Studies, Dale E. Fowler School of Law Chapman University 
  • "Nuremberg and History: Discovering the Six Million": Prof. Michael Berenbaum, Professor of Jewish Studies and Director, Sigi Ziering Institute: Exploring the Ethical and Religious Implications of the Holocaust American Jewish University  
  • "The Propaganda Defendants at Nuremberg": Prof. Gregory Gordon, Associate Dean (Development/External Relations) Director, PhD-MPhil Programme, The Chinese University of Hong Kong, Faculty of Law 
  • "Nuremberg and Guantanamo: Shaming the Legacy of Nuremberg": Prof. David Glazier, Loyola Law School, Former U.S. Navy Warfare Officer and Renowned Law of War Expert 
  • "The Nuremberg Trials and Civil Justice for Survivors": Rabbi Stan Levy, Founding National Director, Bet Tzedek Holocaust Survivors Justice Network 
  • "Nuremberg: One Judge’s Perspective": Judge Rolf Treu ’74: California Superior Court, Los Angeles County 
  • Moderator: Prof. Stan Goldman ’75, Director, Center for the Study of Law and Genocide, Loyola Law School

Wednesday, November 11, 2015

The cost of ‘quality of life’ policing: Thousands of young black men coerced to plead guilty to crimes they didn’t commit

By Professor Alexandra Natapoff

This commentary originally appeared on The Washington Post

At their inaugural debate, the Democratic presidential candidates finally agreed that black lives matter. If they mean it, they should take a stand against a common but overlooked way that our criminal system devalues black lives: convicting African American men of minor crimes that they did not commit.

These wrongful convictions are largely byproducts of “order maintenance” or “quality-of-life” policing, in which police arrest large numbers of young black men on baseless charges. Baltimore police, for example, are under court-ordered monitoring for making baseless quality-of-life arrests. As described by one former officer, police tell young men to move along, then arrest them for loitering when they don’t. Maryland courts have already explained that this police practice is illegal: people who are merely standing on the street, even those ordered to move along, are not actually “loitering,” which the city ordinance defines as “to interfere with, impede or hinder the free passage of pedestrian or vehicular traffic” after having been warned to desist.

Read the full article here.


Tuesday, November 10, 2015

Loyola Law School to Host Symposium On Corporate Rights and Political Spending

Loyola Law School, Los Angeles and Free Speech for People will host the symposium “Corporations, the Constitution, and Democracy” featuring a slate of prominent corporate, constitutional and election-law scholars and a keynote address by the Hon. Leo E. Strine, Jr., chief justice of the Delaware Supreme Court. The event will be held on Friday, Nov. 20 from 12-4:30 p.m. on Loyola’s downtown LA campus.

The panel “The Future of Corporate Constitutional Rights Litigation and Theory,” will feature Margaret M. Blair, Vanderbilt Law School; Erwin Cherminsky, UC Irvine School of Law; Sarah Haan, University of Idaho College of Law; James D. Nelson, University of Houston Law Center; Anne Tucker, Georgia State University College of Law; and Adam Winkler, UCLA School of Law. The panel “Democracy, Corporations and Money in Politics” will include Jeff Clements, Free Speech for People; Richard L. Hasen, UC Irvine School of Law; Michael S. Kang, Emory University School of Law; Jessica Levinson, Loyola Law School; and Michele Sutter, Money Out Voters In.

Chief Justice Strine, a preeminent corporate law jurist, will deliver the keynote address, “Corporate Power Ratchet: The Courts’ Role in Eroding ‘We the People’s’ Ability to Constrain Our Corporate Creations.” Closing remarks will come from John Bonifaz, Free Speech for People, and Elizabeth Pollman, Loyola Law School. The afternoon will conclude with a reception.

“The event brings together top scholars and legal activists to discuss two of the biggest controversies of our time: corporate personhood and money in politics,” said Pollman, conference organizer. “Speakers will address these topics from practical and theoretical perspectives and offer ways to rethink both campaign finance and the constitutional rights of corporations.”

Tuesday, October 27, 2015

8th Circuit Appears Divided in Dryer v. NFL Oral Arguments

By Professor Jennifer Rothman

This commentary originally appeared on the website, Rothman's Roadmap to the Right of Publicity.

The oral arguments from last Thursday’s hearing before the 8th Circuit in Dryer highlight a host of flashpoints in right of publicity law. The arguments focused on whether the use of historical film clips constituted commercial speech.  The plaintiffs’ attorney claimed that the use by the NFL was clearly commercial speech and therefore not entitled to First Amendment protections, citing the 7th Circuit decision in Jordan v. Jewel Food Stores (2014). In Jordan, however, the parties had conceded that the commercial speech question decided whether there was any First Amendment protection in the context of a Lanham Act claim and the appellate court expressed rightful skepticism of that conclusion.  The oral arguments here highlight the confusion over how to categorize and distinguish commercial speech from for-profit commercial uses, like films, news, and sports broadcasts, as well as marketing for the same.  The plaintiff is correct that the broadcasts in Dryer undoubtedly drive good feelings and income to the NFL through game attendance, merchandise, and its entertainment and broadcast programming, and related advertising revenue. This, however, does not make the broadcasts commercial speech, nor does it remove First Amendment protection even if it is commercial speech.

The second right of publicity flashpoint addressed was copyright preemption and whether the players’ agreement to appear in the underlying sporting events prevented subsequent right of publicity claims arising out of a derivative work using those broadcasts. The defense attorney distinguished the uses at issue from using a player’s image on a coffee mug, because in such an instance the likeness of the player would be extracted from the underlying copyrighted work and repurposed.  Under copyright law this is a difference without meaning, although the argument may otherwise seem appealing and perhaps has more traction in a conflict preemption analysis then a section 301 analysis.

The final right of publicity conundrum addressed in oral arguments was the scope of the newsworthiness defense and what counts as newsworthy under the various state laws at issue.  One judge on the panel questioned whether an old football game counted as “newsworthy.”  Such a narrow interpretation of what is newsworthy would be catastrophic for documentarians, journalists, and other creators who often delve into past events.  The arguments also touched upon the question of whether the demonstration via survey evidence of some possible confusion was enough to overcome judgment as a matter of law on the false endorsement Lanham Act claim.  The full arguments can be heard here – Oral Arguments, Dryer v. NFL, Oct. 22, 2015 (8th Cir.)

Wednesday, October 21, 2015

Beyonce, Pharrell, Rihanna, Jay-Z, and Kanye West Sue Over Use of their Images and Names on Merchandise

By Professor Jennifer Rothman

This commentary originally appeared on the website, Rothman's Roadmap to the Right of Publicity.

These megastars sued Eleven LLC for using their names and images in a variety of merchandise, including t-shirts, hats, and cell phone covers. Some of the images evoked Hitler and some of the items used lyrics from the artists’ songs...Look for a settlement in this one.
Looks like promising claims as to false endorsement and right of publicity.  Somewhat less convincing is the defamation claim from adult-oriented models that association with the strip club would subject them to “hatred, shame, . . .ridicule, aversion, ostracism, degradation . . . and/or could induce an evil opinion of Plaintiffs in the minds of right-thinking persons, and/or could deprive each Plaintiff of confidence and friendly intercourse in society.”  Perhaps the complaint itself defames adult entertainers.
Greene was featured in convicted felon Jordan Belfort's memoir upon which the Martin Scorsese movie was based. The movie, however, did not use the plaintiff's name or likeness, but instead created an amalgamated character derived from several real individuals, including the plaintiff. The court therefore rejected Greene's claim because under New York’s privacy statute, N.Y. Civil Rights Law § 51, such claims are limited to uses of the actual name or likeness of an individual. Merely evoking the person’s identity is not sufficient to state a claim.  This treatment of the privacy-based right under New York law differs from the interpretation of right of publicity laws in some other states, notably under California's common law.

Friday, October 9, 2015

Justice Illuminates Criminal Discovery

By Professor Laurie L. Levenson
This book review originally appeared in the Oct. 9, 2015 edition of the Daily Journal.

Who knew that someone could make California discovery law easy to follow? But Justice Brian Hoffstadt has done just that. In his recent book, “California Criminal Discovery” (5th ed., Matthew Bender, 2015), Hoffstadt has provided a comprehensive guide to California’s discovery laws. It is an amazing guide to the statutory and case law obligations of both prosecutors and defense counsel in California.

The book could not have come at a better time. Despite the fact that judges have noted the epidemic of discovery violations in the land, California prosecutors continue to fight against reforming California’s ethical rules to comport with the standards set forth by the American Bar Association in its rules of professional conduct. There is a desperate need for guidance on discovery obligations for both prosecutors and defense lawyers. Hoffstadt seeks to tackle that challenge.

Tuesday, October 6, 2015

Doctors Without Borders Strike a Tragedy, Likely Not a War Crime

By Professor David Glazier

As tragic as the strike on the Médecins Sans Frontières (MSF) hospital was, it is extremely unlikely to constitute a war crime -- at least under the definitions found in the Rome Statute of the ICC -- regardless of whether the conflict is characterized as an International Armed Conflict (IAC) or Non-International Armed Conflict (NIAC). It is important to note upfront that in the "real world" (and by that I mean everywhere in the world except the Guantanamo military commissions) it is recognized that the law, and more specifically the conduct which falls within the scope of recognized war crimes, differs, by conflict type and thus conflict classification is a required element of proof. The Rome Statute, for example, defines 34 war crimes recognized in IAC (Art 8, sections 2(a) and (b)), but only 19 for NIAC (Art 8, sections 2(c) and (e)).

Deliberately attacking civilians, or a protected facility such as a hospital, is a war crime in both IAC and NIAC. But conviction requires demonstrating both knowledge of the protected status and a deliberate decision to attack it nevertheless. What is more likely to be the case here is that either (1) through some sort of procedural error or negligence, in the heat of the moment of the attacks, either or both the folks on the ground calling in air support, and the aircrew, failed to note the protected status of the facility; or, (2) the folks on the ground were receiving sufficient incoming fire from the hospital grounds that they (and/or the aircrew) decided that it had been converted into a legitimate military object by this misuse and lost its protected status.

In either of these cases, the U.S. participants would lack the requisite mens rea to be convicted of a deliberate attack on protected objects or persons.

Monday, October 5, 2015

Prof. Lazaroff's Law Review Article Cited in Pivotal Opinion

Professor Emeritus Dan Lazaroff’s law review article, “The NCAA in Its Second Century: Defender of Amateurism or Antitrust Recidivist?” from the Oregon Law Review is cited in the U.S. Court of Appeals for the Ninth Circuit's opinion in O’Bannon v. NCAA.
The NCAA began to strengthen its enforcement capabilities in 1948, when it adopted what became known as the “Sanity Code”—a set of rules that prohibited schools from giving athletes financial aid that was based on athletic ability and not available to ordinary students. See Daniel E. Lazaroff, The NCAA in Its Second Century: Defender of Amateurism or Antitrust Recidivist?, 86 Or. L. Rev. 329, 333 (2007). The Sanity Code also created a new “compliance mechanism” to enforce the NCAA’s rules—“a Compliance Committee that could terminate an institution’s NCAA membership.” Id.
Professor Emeritus Dan Lazaroff commented on this landmark decision in publications like the The Los Angeles Times, Pittsburgh Post-Gazette, Inside Higher Ed., and The Daily Journal.

Thursday, October 1, 2015

4th Annual US-China IP Conference 2015

Loyola Law School, Los Angeles, Berkeley Center for Law & Technology, and Renmin University of China Law School organized the fourth annual US-China IP Conference to compare developments and trends in two countries critical for any IP creation and protection strategy. Leading scholars, government officials and practicing lawyers from China will join US experts to examine vital current topics including: new trends in transnational technology investment, developments in copyright, and cross-border IP enforcement.

Professor Seagull Song and Director of the Asia-America Law Institute, Professor Justin Hughes, and Professor Jeffrey Atik will be speaking at this event.

Year in Review: Top Chinese Entertainment Law Cases between 2014-15
The year of 2014 has been a fantastic year for Chinese film market. China became the second largest box office in the world, right behind the U.S. In same year, we also witnessed a significant increase in entertainment law cases filed, argued and decided by Chinese courts, covering issues ranging from copyright infringement, trademark, anti-unfair competition, to privacy, right of publicity, defamation, labor law, and of course, contract disputes. This presentation will discuss some top Chinese entertainment law cases decided during the same period of time and addresses key issues of significance to the Chinese entertainment industry. They range from idea/expression dichotomy, movie title protection, director credit, movie revenue sharing, and the balance between privacy and freedom of speech.

Recent Developments on Copyright: Legislation and Cases
As part of a panel discussing recent developments in U.S. copyright law, Professor Hughes discussed the Ninth Circuit's recent Garcia v. Google decision as well as movements in Washington toward ratification of the Beijing Treaty on Audiovisual Performances (2012) and the Marrakesh Treaty for the Blind (2013).
Specialized IP Courts
An almost all-EU patent court is the institutional centerpiece of the new EU 'unitary' patent system. The new court, to be known as the European Unified Patent Court, will have jurisdiction over all invalidation and infringement actions involving patents issued by the European Patent Office that are designated to have 'unitary effect,' that is effectiveness within the great number of EU states participating in the new scheme. The substantive patent law to be applied by the new court is an awkward amalgam of European, treaty and national law - and the national law is determined largely by the formalistic presence of the patent applicant in a particular EU member state. Atik's presentation explores the various sources of this new (and variegated) substantive patent law, and the hierarchical relationship of its various elements.

The conference will be held at University of California Berkeley on October 8-9, 2015. Click here to register.

Thursday, September 24, 2015

Pope Francis Calls for Common Good Before Congress

By: Scott Wood
Professor Emeritus

I join millions of Americans in celebrating the Pope's wise and deeply moving address to the joint meeting of Congress. An hour-long speech, the longest he has every given in English.

He called each of us to be our best selves in the spirit of Lincoln, MLK. Jr., Dorothy Day and Thomas Merton. The four Americans that he spotlighted capture the principles of Catholic Social teaching and, at the same time, the best of our American cultural values. The Pope's wide-ranging talk both resonated with and also challenged liberals and conservatives. His call to promote the common good was a major theme that informed his points on caring for refugees and immigrants, for making a positive difference in climate change, for promoting civil dialogue between factions rather than supplying them with arms. He unequivocally condemned the death penalty saying that "Punishment must never exclude hope or rehabilitation."

More than the content of his speech, the Pope communicated a humility and kindness that reminded his listeners that the universal Golden Rule should govern our lives and guide our actions. Consistent with his open-hearted speech, he closed his visit to the Capitol bidding farewell from the balcony where he blessed the children and then asked non-believers and others who cannot pray to send him their best wishes. The Pope spoke to and for a truly universal church.

The Pope's speech connects directly with the LLS mission to educate lawyers who will commit to ethics and service in their practices, to contribute legal services to the underserved pro bono. The Pope's emphasis on the welfare of children is reflected in Loyola's Center for Juvenile Law & Policy; his opposition to the Death Penalty resonates with Project for the Innocent; his championing the cause of refugees and immigrants is mirrored in Loyola's immigration rights clinic. LLS is part of a Jesuit university that teaches students to be persons for others. Each of the Pope's four American exemplars--two non-Catholics and two Catholics--was a person for others.

Tuesday, September 22, 2015

Pope Francis Spreads Social Justice in U.S.

By Father Luis Arriaga, S.J.
Jesuit Legal Fellow

Those who profess the Catholic faith are rejoicing! Not only is it rare for a pope to visit the U.S., never have we had a visit from a pope with an origin from the Americas. Now, Pope Francis is visiting several American cities.

At a time when religion is in crisis, the Church has a pope who is one of the most important leaders of the world. He is a man who has accepted that the love of God lives within him. He does not believe that the dogma of the Church is as important as that of being human, i.e., the freeing of the poor and those who suffer injustices in this world. Pope Francis has stated that poverty is not eradicated by assistance or charity, but by the public policy of governments that should return dignity to the oppressed and make their citizens autonomous and participatory. In other words, there should be a radical change from the logic of mere financial assistance to the poor to a philosophy that society should provide opportunities for social development for people of all economic levels.

Monday, September 21, 2015

Federalism vs. Individual Rights in Suit Against Court

By Professor Karl Manheim

This op-ed originally appeared in the Sept. 21, 2015 edition of the Daily Journal.

California’s budget crises of recent years had a deleterious effect on state court funding. The same story was repeated around the country as state courts became convenient targets of budget cuts. Unsurprisingly, such cuts adversely affect the administration of justice. Also unsurprisingly, the effect is often uneven, creating special hardship for certain populations.

Los Angeles County Superior Court (LASC) responded to the funding crisis by closing courtrooms around the county and consolidating certain categories of cases into a few “hub” courts. It closed the majority of courtrooms hearing unlawful detainer (eviction) actions, while leaving many other types of civil cases mostly unaffected.

Los Angeles County is the largest in the nation in population and one of the largest in size. Half of its 10 million residents are renters. In 2013, the 26 neighborhood courts that heard eviction actions were “consolidated” into five courts spread across the county. For some tenants facing eviction, now getting to the courthouse became an almost insurmountable obstacle. This was especially true for poor and disabled renters who had to rely on public transportation.

Civil rights groups representing these vulnerable groups filed suit against LASC in federal court under the Americans with Disabilities Act and other statutory and constitutional claims. They cited Tennessee v. Lane, 541 U.S. 509 (2004), which permitted a litigant with disabilities to sue a state court over impediments to courthouse access. Lane rejected state sovereign immunity to such ADA claims.

Friday, September 18, 2015

Bringing Disability into Constitutional Law Discussions

By Professor Michael Waterstone
This was originally posted on American Constitution Society for Law And Policy as part of their 2015 Constitution Day Symposium.

Disability should be included in constitutional discussions. For the most part, it has not been. The doctrinal resting place of disability constitutional law is a bad one – under Cleburne, government classifications on the basis of disability are only entitled to rational basis scrutiny. Especially given that there is a statute, the Americans with Disabilities Act, that in many ways goes further than what constitutional law could require, disability cause lawyers have not brought cases under constitutional theories. And, tracking this, the progressive academic discussions of the Constitution’s future and potential do not usually include any discussion of disability.

Monday, September 14, 2015

Can Birthright Citizenship be Repealed?

By Adjunct Professor Don Warner

This op-ed originally appeared in the Sept. 14, 2015 edition of the Los Angeles Daily Journal.
Several candidates for the Republican nomination in the 2016 presidential election have adopted as a policy the elimination of so-called "birthright citizenship" for children of illegal aliens born in this country. How could this be accomplished? To find out, let’s engage in a thought experiment.

The first barrier, as almost everyone agrees, is this language in the 14th Amendment to the U. S. Constitution: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States."

So we'll pass an amendment modifying that language. Can a subsequent amendment amend an amendment? The 21st Amendment repealed the 18th entirely, ending the "experiment" of alcohol prohibition. So, no problem here.

Our new amendment could modify the language in Section 1 of the 14th to add a proviso: "Provided that, no person both of whose parents, at the time of such person's birth, were…” Illegal aliens? Undocumented workers? Vague and ambiguous. Let's use one of a drafter's best tricks, negative language: "were not legally present in the United States."

Friday, September 11, 2015

Youth Justice Education Clinic Fall 2015 Updates

By Professor Michael Smith, Youth Justice Education Clinic Director

The Youth Justice Education Clinic (YJEC) was originally conceived six years ago to serve the education advocacy needs of the Juvenile Justice Clinic, and that continues as one of our core missions, we are now taking community referrals from families and students who may benefit from our comprehensive education and disability advocacy.  We currently have approximately 50 active clients, from 4 through 20 years old, many with multiple legal issues.  

While much of our legal advocacy focuses on special education law (eligibility, placement, services, and compensatory services awards), we also have the expertise to provide advocacy, and regularly do so, in the following related areas: general education discipline, including suspensions, expulsions, and illegal non-voluntary transfers; school enrollment issues, usually based on illegal denial of enrollment due to homelessness, probation status, disability, and credit deficiency; Regional Center (eligibility, placement, and services) advocacy for the developmentally delayed; school based discrimination based on disability, race, sexual orientation, gender identity, gender expression, homelessness, religion, and poverty; and, if necessary, federal and state court litigation for monetary damages based on civil rights violations and tortious conduct.  Finally, it is not unusual, in the course of our work, to uncover school district (and other public entity) policies that do not comply with applicable laws.  When faced with the clear illegality of their policies, the school district will change, district-wide, how they deal with all their students.

Wednesday, September 9, 2015

Prof. Waterstone Comments on State Bar Mentoring Proposal

The California State Bar recently created a State Bar Attorney Mentoring Program designed to "further public protection through mentoring, education and the training of young lawyers to promote the pursuit of excellence, professionalism, and ethics in the practice of law."

Part of the pilot for this program includes asking members of the bar for public commentary in hopes of designing a program that would best fit the needs of California law students and their possible mentors. Professor Michael Waterstone's commentary appears below.

Friday, September 4, 2015

U.S. Dept. of Justice Focuses on Juvenile Justice

By Professor Kevin Lapp
This was originally posted on Juvenile Justice

The U.S. Department of Justice’s Civil Rights Division has recently been focusing some significant attention on the administration of juvenile justice.

In 2012, it released a report on the Shelby County, Tennessee juvenile justice system, finding that Shelby County’s juvenile justice system failed to provide constitutionally required due process for those accused of delinquency and failed to provide equal protection under law for accused African-Americans. Later that same year DoJ announced an agreement that included a series of corrective measures.

Tuesday, August 18, 2015

Prof. Caplan writes ACLU Amicus Brief in Religious Freedom Case

Prof. Aaron Caplan was the primary author of an amicus brief to the Fifth Circuit in Ali v. Stephens, a case involving the religious rights of prisoners. He teaches courses in Constitutional Law and First Amendment, including freedom of religion.

David Rasheed Ali is an observant Sunni Muslim who is incarcerated by the state of Texas. He has a sincere religious belief that he should grow a beard about as long as his fist (three or four inches) and wear a kufi (a white, seamless, knit cap with small holes) during the day. The prison's rules forbid this, even though the federal Religious Land Use and Institutionalized Persons Act of 2000 requires prisons to accommodate religious exercise unless there is a "compelling" reason not to. Even after the prison lost in the trial court, and after the US Supreme Court held earlier in 2015 that the Act required a prison in Arkansas to allow an inmate to grow a religiously-motivated beard, Texas nonetheless appealed to the Fifth Circuit.

Thursday, August 13, 2015

Apple Loses Appeal in E-Books Antitrust Case

By Professor Jeffery Atik

This is an excerpt from Attraverso

Through a series of spectacular commercial moves, Apple succeeded in disrupting the e-book space upon its 2009 release of the iPad, sweeping away Amazon Kindle’s popular $9.99 pricing for new releases and for New York Times best-sellers. The iPad brought meaningful competition to Amazon’s wildly successful Kindle as an e-book platform; the emergence of this new distribution channel raised e-book prices, whether purchased on iPads or Kindles, seemingly defying an economic law of gravity. It was a coup that only a Steve Jobs could pull off. The e-book price shift attracted the attention of federal and state antitrust authorities. In 2012, the government brought a civil antitrust action against Apple and five major publishers. The book publishers settled, and the government proceeded in a price fixing claim against Apple. On June 30, a panel of the Second Circuit Court of Appeals upheld a federal trial court’s finding that Apple violated Section 1 of the Sherman Act.

Apple’s play in resetting the commercial terms of e-book distribution was brilliant, even if (as the courts have now determined) illegal. The Apple e-book case addresses some major issues in contemporary antitrust law. May a party, in a vertical relationship with a producers cartel, be found liable for price fixing? Does such a situation constitute a per se antitrust offense?

Read the full post on Attraverso

Thursday, July 30, 2015

Disability Constitutional Law

By Professor Michael Waterstone
This was originally posted on American Constitution Society for Law And Policy

This week is the 25th anniversary of the Americans with Disabilities Act (ADA). The ADA prohibits discrimination on the basis of disability in employment, government programs and services, and privately owned places of accommodation. It was and remains an ambitious law, requiring employers and business owners to make reasonable accommodations, at their own expense, to be more accessible to people with a wide range of disabilities. And although there is still a long way to go, the ADA should be celebrated for its role in moving people with disabilities into the mainstream of society.

Monday, July 27, 2015

Closing Thoughts on The Science of Learning

By Professor Aaron Caplan

This post is part of the Strange Bedfellows series at Prawsblawg.

In this guest blogging series, I’ve had fun identifying connections between canonical cases not ordinarily taught together.  But is it any more than a parlor game?

For a teacher with years of familiarity with the cases, it can be invigorating to rearrange the furniture—and students always benefit from an invigorated teacher.  The fear is that giddily wandering away from the orthodox doctrinal silos might create an obstacle for students who need to know and apply the orthodox solutions to problems.  I’m convinced that when handled properly, exposure to these strange bedfellows actually leads to better comprehension of the orthodox approach.  This is primarily because a semester with a healthy amount of unexpected (but valid) juxtapositions will inevitably take advantage of two strategies favored by researchers into the science of learning: interleaving distinct but related topics, and repeated exposures spread over time.

The silo approach (a unit on the Commerce Clause, followed by a unit on the Spending Clause, and so on) presumes that it would be unduly confusing for students to shift gears, hurting their comprehension. But studies show the opposite: interleaving the presentation of related but distinct topics results in better mastery of each topic. Learners understand the relationships among silos better, and also—perhaps unexpectedly—they understand each silo better.

Friday, July 24, 2015

Subsequent History Surprises

By Professor Aaron Caplan

This was originally posted on PrawfsBlawg as part of the Strange Bedfellows series.

Most Constitutional Law classes discuss how the system can correct its mistakes. If one branch or level of government errs, others can respond, pushing the substance of the law to a new equilibrium. Teaching the subsequent history of anti-canonical cases is one good way to demonstrate this point. Constitutional amendments erased Dred Scott and Pollock, later court decisions overruled Lochner, the Pregnancy Discrimination Act made Geduldig largely irrelevant, and the Georgia Supreme Court held that the sodomy statute upheld in Bowers v. Hardwick violated the state constitution. To show how SCOTUS does not always have the last word, my casebook includes short units called “Flash-Forwards” that tell the rest of the story (or at least some of it). Once students are attuned to possibilities outside the courtroom, they can have a good classroom discussion about what a concerned citizen, legislator, or executive branch official might do in response to a troubling court decision.

It is less common to spend time on the subsequent history of cases that are canonical—the ones considered good law, never overruled. As usually presented in casebooks, Cooper v. Aaron (1958), Palmore v. Sidoti (1984) and United States v. Carolene Products (1938) are all cases where the Court got things right, guiding the system to a proper equilibrium. But in each of these cases, the victory promised in the canonical opinion played out differently on the ground, with the results for the prevailing party being less than advertised. The subsequent histories of these canonical cases could in theory be as deserving of class time as the subsequent histories of anti-canonical cases—the basis for a discussion about the value of a court victory.

Tuesday, July 21, 2015

U.S. DOJ criticizes DEA informant program

 By Professor Alexandra Natapoff

This was originally posted on Snitching.org 

The Office of the Inspector General (OIG) of the U.S. Department of Justice has just released this report, Audit of the Drug Enforcement Administration’s Confidential Source Policies and Oversight of Higher-Risk Confidential Sources.

This is an important report for a number of reasons.  The press and the public have had trouble getting basic information from the DEA about its informant policies and usage: this audit fills in some of those informational gaps. The audit identifies numerous troubling practices within the DEA and offers new insights into the kinds of risks that are routinely run by federal officials who rely on criminal informants.  The audit also strengthens the case for a pending bill in Congress entitled "The Confidential Informant Accountability Act," H.R. 2985, introduced by Rep. Stephen Lynch (D-MA). That bill would require the DEA, along with the FBI and other federal investigative agencies, to report to Congress the serious crimes committed by their informants, as well as their payments and rewards.  As described in greater detail below, the OIG found that the DEA was seriously deficient in documenting and controlling the crimes committed by its informants.

Monday, July 20, 2015

Why So Tense?

By Professor Aaron Caplan

This was originally posted on PrawfsBlawg as part of the Strange Bedfellows series.

A few blockbuster cases remain for SCOTUS to decide this term, and given the current make-up of the Court, this means a high likelihood of fire-breathing dissents. Teachers—and particularly casebook authors—need to decide which lessons, if any, to draw from these dissenting opinions. For myself, I always like to spend some time on at least a few throughout the semester, for what they teach us about the substance of the law and about the art of advocacy.

The substantive lesson comes in large part from considering which cases provoke verbal fireworks and which do not. At the outset, constitutional law is more likely than other legal subjects to provoke heat, and within the Con Law canon some topics provoke more flame wars than others. The flamer is trying to signal that something important is happening, so a suitable question for the class can be “why are they so upset?” This is especially valuable when a case that seemingly involves low stakes provokes what seems like a rhetorical overreaction, as in Caperton v. Massey Coal (2010) (judicial recusal) or BMW of North America v. Gore (1996) (punitive damages).

Friday, July 17, 2015

The Frame Game

By Professor Aaron Caplan

This was originally posted on PrawfsBlawg as part of the Strange Bedfellows series.

The Con Law canon contains many opportunities to teach how the choice of frame greatly can affect the outcome of a case. In many cases, an advocate’s first and most important task is to convince the judge properly fill in the blank in the following sentence: “This is a case about ____.”

My favorite example is Johnson v California (2005), where a prisoner objected to a state department of corrections policy to house inmates with cellmates of the same race. The majority filled in the blank by concluding that “This is a case about race,” which meant that strict scrutiny applied. The dissenters filled in the blank by concluding that “This is a case about prisons,” which meant that a standard much more deferential to governmental decisions would apply. Nothing in existing law forced the court to choose one frame or the other, making Johnson a great opportunity to explore methods of persuasion with students. What would you say to convince the judge to use your frame instead of your opponent's?

Wednesday, July 15, 2015

Precedential Floors and Ceilings

By Professor Aaron Caplan

This was originally posted on PrawfsBlawg as part of the Strange Bedfellows series.

The strange bedfellows presented so far in the series have been pairings of cases that reveal something interesting or unexpected about the substance of constitutional law. But as we all know, courses in Constitutional Law are required at most schools only in part for their substance. Since the substance is subject to (comparatively rapid) change, much of the value in the course is in how it can teach the set of legal skills necessary when dealing with a controlling text that where “majestic generalities” predominate. The next few posts looks at cases that could be taught together (or at the very least, linked together orally if not taught the same day) for their similarities of legal reasoning.

A recurring issue in any young area of law—and US Constitutional Law is young when compared to the common law topics like contracts and property—is how to reason from sparse precedents. Specifically, in an area with only a handful of decisions on point, do those precedents represent a ceiling or a floor?

Monday, July 13, 2015

Streams of Commerce

By Professor Aaron Caplan

This was originally posted on PrawfsBlawg as part of the Strange Bedfellows series.

Those of us who also teach Civil Procedure are familiar with the “stream of commerce” concept within the constitutional law of personal jurisdiction. Under circumstances that the Supreme Court has notoriously failed to make clear, an entity that manufactures and sells a product in one state may be subject to personal jurisdiction to the courts of another if the product causes injury after traveling there through “the stream of commerce.” Less well remembered is that the “stream of commerce” once had a significant role to play in the law of the Commerce Clause.

These two streams of commerce are taught under different pedagogical silos, but may have something to say to each other.

During the Lochner era, SCOTUS cases involving the commerce power attempted to draw a line between transactions deemed to have “direct” impact on interstate commerce (which Congress could regulate) and those with only “indirect” interstate impact (which Congress could not regulate). Conversely, the federal government was allowed to impose regulations on interstate commerce that affected local commerce, so long as their impact was “indirect.” In appropriate cases, SCOTUS was willing to see “direct” impact when purely in-state activities took place within a stream of commerce that would predictably flow to other states.

Friday, July 10, 2015

Alcohol All Over The Place

By Professor Aaron Caplan

This was originally posted on PrawfsBlawg as part of the Strange Bedfellows series.

For a topic that supposedly is not part of the standard Con Law curriculum, federal alcohol prohibition—and its repeal by the 21st Amendment—appears remarkably often in the typical syllabus.

The two alcohol-related cases most firmly established in the canon and reproduced in whole or in part in virtually every Con Law casebook are South Dakota v. Dole (1987) (allowing Congress to condition receipt of federal highway funds on states raising their drinking ages to 21) and Craig v. Boren (1976) (adopting intermediate scrutiny for sex-based classifications under equal protection, in a case where state established different drinking ages for males and females). Other alcohol cases sometimes taught in Con Law or related electives include Wisconsin v. Constantineau (1971) (invalidating on procedural due process grounds a statute allowing police to forbid sales of alcohol to problem drinkers), Larkin v. Grendel’s Den (1982) (invalidating on Establishment Clause grounds a zoning ordinance that gave veto over liquor licenses to nearby churches); 44 Liquormart, Inc. v. Rhode Island (1996) (invalidating state liquor advertising laws under the commercial speech doctrine), and Granholm v. Heald (2005) (invalidating under the dormant commerce clause doctrine a state law forbidding interstate direct-to-consumer wine sales while allowing similar intrastate sales).

Wednesday, July 8, 2015

Eugenics All Over The Place

By Professor Aaron Caplan

This was originally posted on PrawfsBlawg as part of the Strange Bedfellows series.

It’s well known that Buck v. Bell (1927) and Skinner v. Oklahoma (1942) are the leading SCOTUS cases on the constitutionality of eugenic sterilization laws. But the legacy of the eugenics movement appears elsewhere in the Con Law canon—including such greatest hits as Loving v. Virginia (1967), Washington v. Davis (1976), and Cleburne Living Center (1985).

To best see the connections, it helps to know some of the history of intelligence testing. Researchers in the early 20th century attached a number of terms, intended to be clinical, to levels of intellectual development considered abnormally low. The two original terms were idiot and imbecile. An idiot was pre-verbal, with no more intelligence than an infant. An imbecile could use language, but had the intelligence only of a pre-pubescent child. Later researchers became concerned that there was a class of adults who could speak and function above the imbecile level, but should still be categorized as abnormally stupid. They might be good for factory labor, but they tended to be "immoral" and prone to "criminality." These were the morons. When Oliver Wendell Holmes, speaking of Carrie Buck’s genealogy, said that “three generations of imbeciles are enough,” he misspoke: at best, the allegation was that Carrie Buck was one of generations of morons. And she wasn’t one of those either. See Paul Lombardo, Three Generations, No Imbeciles, 60 NYU L. Rev. 30 (1985). The blanket category for idiots, imbeciles, and morons was feeble-minded.

Monday, July 6, 2015

Carolene Products, Skinner v. Oklahoma, the Japanese Internment Cases, and West Virginia v. Barnette

By Professor Aaron Caplan

This was originally posted on PrawfsBlawg as part of the Strange Bedfellows series.

For those accustomed to the silo method, this collection of cases will seem really weird. “Barnette is a First Amendment case! Skinner is a fundamental rights case! Hirabayashi and Korematsu are equal protection cases! Carolene Products is an economic substantive due process case! They don’t belong together!” Actually, they teach extremely well together, because each deals with the central question of choosing the appropriate level of judicial scrutiny. Do some types of cases deserve more intense judicial review than others?

In the spring of 1937 the reasoning of the Lochner era came crashing down, and with it the Supreme Court’s commitment to skeptical review of economic legislation (whether that review involved the Commerce Clause, the Due Process Clause, or other areas of doctrine). Carolene Products (1938) is part of that story, announcing a very deferential form of rational basis review for economic regulation, but including a footnote suggesting that courts might choose to be more stringent in individual rights cases. Rather quickly—within the next six years, in fact—the Court had to decide if it was really going to adopt a two-level approach.

Wednesday, July 1, 2015

Citizens redistricting panels survive test

By Professor Jessica Levinson

This op-ed originally appeared in the Sacramento Bee. Levinson has also provided related commentary to the San Francisco Chronicle, Los Angeles Times, AZ Central and NBC 4-Los Angeles.

The U.S. Supreme Court just saved independent redistricting commissions, but a political earthquake could be coming next term.

Writing for a 5-4 majority, Justice Ruth Bader Ginsburg on Monday upheld the ability of citizens commissions to draw congressional district lines. At issue was the elections clause of the U.S. Constitution, which provides that the “Legislature” in each state shall prescribe the “times, places, and manner of holding elections for senators and representatives.”

The majority essentially found that the word “Legislature” includes not just elected lawmakers but also citizens acting in a legislative capacity, for instance when exercising their rights under initiatives or referendums to enact or repeal laws that affect congressional elections.

Had the court ruled the other way, it could have thrown the validity into question of other numerous other laws passed via direct democracy that affect congressional elections – open primaries, voter identification requirements, vote by mail provisions and early voting. In addition, California’s redistricting commission, likely legally indistinguishable from Arizona’s commission, now appears safe from this type of legal challenge. This ruling maintains the status quo throughout the country.

Monday, June 29, 2015

Liberty lists: How Do We Enumerate Rights? Let Me Count the Ways

By Professor Aaron Caplan

This post is part of the Strange Bedfellows series at Prawsblawg.

To enumerate rights or not to enumerate them? Federalist Noah Webster, arguing against the need to include a Bill of Rights in the proposed constitution, asserted that a person sleeping on his right side has a natural law right to roll over and sleep on his left side, but we aren’t going to write such minutiae into the Constitution. Moreover, if that right was constitutionally enumerated, it would imply that those not enumerated—say, the right to wear a hat—were not protected. The latter problem was supposed to be put to bed by the Ninth Amendment (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”) Enumerate away!

The story’s not quite that simple, as the disagreement between plurality and dissent in the recent Kerry v. Din shows. But as a teaching tool, it can be useful to explore the decision to enumerate rights in the constitution through the decision to enumerate rights in court opinions. In a selection of cases, the Supreme Court has sought to provide sample enumerations of unenumerated rights as a way of indicating the scope of American freedom. These "liberty lists" have arisen most prominently in the 20th and 21st centuries with regard to the Due Process Clause, but decisions from before the ratification of the Fourteenth Amendment offered other lists that were claimed to flow from the Privileges And Immunities Clause of Art. IV and the structural meaning of citizenship itself.

Issues worth studying when comparing these various liberty lists are how their contents have (or have not) changed over time; when they are used as opposed to when they are not; and whether the amount of detail in the list correlates to a win for the individual claiming an unenumerated liberty. The punch line at the end of a capacious list is most often “We protect a huge range of liberties, including yours” (as in Meyer v. Nebraska) but it can also be “We protect a huge range of liberties, but not yours” (as in Board of Regents v. Roth).

Friday, June 26, 2015

Chevron After King v. Burwell

By Professor Adam Zimmerman

Prof. Zimmerman is guest blogging on Prawfsblawg, where this post originally appeared.

As Richard already observed today, in King v. Burwell, the Court upheld the government's interpretation of the Affordable Care Act to allow people to get subsidies on healthcare exchanges created by the federal government. Chris Walker has a nice post at JREG discussing the case.   

I agree with Chris that the way the Court reached today's outcome could have broader consequences for administrative law.  I offer some very, tentative off-the-cuff thoughts about the opinion below the fold.

Thursday, June 25, 2015

Thoughts on King v. Burwell

By Professor Brietta Clark

Today the Supreme Court, in a 6-3 decision in King v. Burwell, held that subsidies (or tax credits) are available to help consumers buy insurance, whether they purchase insurance on a State or Federal Exchange. In upholding this critical piece of the Affordable Care Act (ACA), the Court interpreted the law in a way that is most faithful to Congress’s goals of making insurance more affordable and of ensuring the availability of meaningful insurance offerings in the market. Practically, this decision is important because consumers in states that have resisted reform efforts are already suffering from the failure of these states to expand Medicaid; by holding that the ACA authorizes subsidies on a Federal exchange, the Supreme Court has preserved at least one important avenue for increased health care access in these states. But health reform proponents are not only happy about what the Court decided; they are relieved because of how the Court came to its decision.

The issue in the case – whether subsidies would be available for consumers purchasing insurance on a Federal exchange – turned on a question of statutory interpretation. Petitioners challenged the IRS rule authorizing the subsidies as inconsistent with the Affordable Care Act. Specifically, they pointed to language in a provision in the Act, now Section 36B of the Internal Revenue Code, which defines the premium assistance credit amount by referring to an insurance plan that is enrolled in through “an Exchange established by the State….” Petitioners insisted that this text only authorizes subsidies for use on state-run exchanges, but does not authorize them for use in states that have a Federal exchange. Government officials defended the IRS rule by arguing that the relevant language must be read within the context of the statute as a whole, and that based on this, it was clear that Congress intended to make subsidies available for use on State and Federal exchanges.

Wednesday, June 24, 2015

Aggregate Agency Adjudication

By Professor Adam Zimmerman

Prof. Zimmerman is guest blogging on Prawfsblawg, where this post originally appeared.

At Yale's Journal on Regulation, Chris Walker highlights our project on Aggregate Agency Adjudication with the Administrative Conference for the United States. Michael Sant’Ambrogio and I are studying agencies that experiment with class actions, trials by statistics, and other aggregate litigation techniques to resolves lots of cases in their own courts. As we discuss in The Agency Class Action, 112 Colum. L. Rev. 1992 (2012), agencies don't do this very often. And there are lots of reasons why. But, we want to see if agencies can use aggregate adjudication along with other tools -- rulemaking, informal guidance, stare decisis and ADR -- to resolve cases more effectively.

I've already described Medicare's new pilot plan to use "trials by statistics" to alleviate its 500,000+ case backlog. So, here's another example: the National Vaccine Injury Compensation Program. Congress created this program in the 1980s to provide people injured by vaccines with a no-fault alternative to lawsuits in federal court. In theory, an "Office of Special Master" must decide whether to compensate someone in 240 days based on a showing that the vaccine caused the injury. But see Nora Freeman Engstrom, A Dose of Reality for Specialized Courts: Lessons from the VICP, 163 U. Pa. L. Rev. _ (forthcoming 2015) (finding, among other things, that it takes longer than that). Many claims proceed one at a time, like most benefit programs. But when over 5,000 parents claimed that a vaccine additive, called Thimerosal, caused autism in children, the Vaccine Program used three “omnibus proceedings" to pool together all the individual claims that raised the same highly contested scientific questions in front of just three adjudicators. As it happens, the Vaccine Program has used coordinated proceedings like this for more than 20 years.

Even though the Act that created the vaccine program contains no provision for class action suits or anything like it, the program developed the concept of the omnibus proceeding on its own because the "same vaccine and injury often involve the same body of medical expertise." Counsel representing large groups of individual claimants often use an omnibus proceeding to answer questions of "general causation," like whether a particular vaccine is capable of causing a specific injury. The issue of whether it did so in a specific case can then be resolved more expeditiously. I'll provide a few more details about this process below, but can you think of other agencies that assign large groups of individual similar cases to the same adjudicator for similar reasons? What are strengths and weaknesses of this kind of approach? The Vaccine Program uses two types of omnibus proceedings. The first involves common vaccines and injuries--applying evidence developed in the context of one or more individual cases to other cases involving the same vaccine and the same or similar injury. See, e.g., Capizzano v. Sec’y, HHS, 440 F.3d 1317 (Fed. Cir. 2006). The second involves hearing evidence on a general theory of causation--like does a rubella vaccine cause chronic arthritis or other categories of joint problems? The special master makes findings based on that evidence and orders the parties to file papers establishing the extent to which the facts of individual cases fit within the courts general findings. See, e.g., Ahern v. Sec’y, HHS, No. 90-1435V, 1993 U.S. Claims LEXIS 51 (Fed. Cl. Spec. Mstr. Jan. 11, 1993). For example, counsel representing a large number of petitioners and counsel for respondent may file expert reports and medical journal articles to support the theory that the rubella vaccine is associated with chronic arthritis. The special master then (1) conducts a hearing in which the medical experts testify, (2) publishes an order setting forth the conclusions, and (3) files it in each of the rubella cases. If he finds sufficient evidence that the rubella vaccination could cause chronic arthropathy under certain conditions, he may order individual petitioners seeking compensation to establish those conditions in a separate filing.

According to one special master, however, most omnibus proceedings work like bellwether trials in federal district court--organizing individual cases that raise similar issues in front of the same adjudicator, in the hopes that a big outcome settles aspects of the remaining cases:

Most omnibus proceedings ... have involved hearing evidence and issuing an opinion in the context of a specific case or cases. Then, by the agreement of the parties, the evidence adduced in the omnibus proceeding is applied to other cases, along with any additional evidence adduced in those particular cases. The parties are thus not bound by the results in the test case, only agreeing that the expert opinions and evidence forming the basis for those opinions could be considered in additional cases presenting the same theory of causation.

The use of the omnibus proceeding is thus less binding than the "all-or-nothing" approach of the class action. But there are some drawbacks. First, some agencies, even if they wanted to, may not be able to adopt omnibus proceedings like the Vaccine Program. Many agencies use administrative law judges, who are assigned randomly to each individual case to minimize bias and to prevent gamesmanship. Second, omnibus proceedings raise interesting questions about the legitimacy of using an adjudication process to settle complex scientific questions. Not only were many plaintiffs in the autism proceedings anxious about commencing cases together, so were members of the public heath community, who "found it unsettling that the safety of vaccines must be put on trial before three "special masters"" in an obscure vaccine court. Said one: "the truth about scientific and medical facts is not, ultimately, something than can be decided either by the whims of judges or the will of the masses."

To be fair, however, those concerns aren't unique to mass litigation, or for that matter, agencies that rely on rulemaking procedures, scientific panels, or even, the Center for Disease Control to resolve tough scientific questions. And, in the case of vaccines and autism, a significant test for the limited resources of the vaccine program, at least some found that the ability to hear common cases together led to deliberations that represented a "comparatively neutral exhaustive examination of the available evidence." But such concerns still raise the question about the best way to efficiently and consistently pool information about many common claims without sacrificing legitimacy, compromising due process, or magnifying the risk of error.