Expanding Access to Civil Remedies for Domestic Violence

Jun 3, 2025 Allan ErbsenAdd a Comment

Allan Erbsen

Civil Protection Orders (CPOs) empower targets of domestic violence to enlist the state as an ally. Streamlined procedures enable plaintiffs to avert abuse that public institutions might otherwise be unable to address. In contrast to criminal remedies, civil remedies focus on protecting victims rather than punishing abusers, rely on robed magistrates rather than armed officers, and require proof by a preponderance of the evidence rather than beyond a reasonable doubt. Despite creating only a parchment barrier, CPOs often have sufficient gravitas to deter abusers. When deterrence fails, CPOs facilitate arrest and prosecution.

Inadequate public knowledge about CPOs blunts their utility. Virtually all victims of domestic violence know that they can dial 911. Fewer know that they can apply for a CPO. Reformers seeking to protect victims while reducing dependence on the criminal justice system have therefore considered how to expand awareness of civil remedies.

Lisa Martin’s The Importance of Civil Pathways to Protection Orders provides valuable insight into the underuse of CPOs. The article reports the results of an empirical study reviewing nearly every CPO application filed in South Carolina’s family courts in 2019. Martin analyzed more than 3,400 files from forty-five of the state’s forty-six counties, coding for more than forty variables.

Martin uses her data to explore the causes and consequences of inadequate access to civil remedies. She offers three observations that support a striking conclusion about how resource disparities between urban and rural counties shape civil litigation.

First, plaintiffs often seek CPOs after interacting with police officers. This correlation seems obvious but is not consistent with the aspirations of CPO regimes. States developed CPOs in part to accommodate victims of domestic violence who do not want to contact the police. Prior studies show that many victims fear the consequences of contacting the police and that many victims who contact the police regret doing so. Yet Martin observes that CPOs are often not a viable alternative to calling 911 because victims do not realize that CPOs are available. Victims must contact the police to learn how to avoid the police. This is a Kafkaesque regression of the innovative CPO remedy.

Second, a corollary to relying on police is that CPO applicants often lack support from other community resources. Several counties in South Carolina have no legal aid offices and no domestic violence advocacy groups. Residents often lack access to private counsel, public transportation, and the internet. Case files in these counties confirm that guidance about CPOs comes primarily from police departments because there are few, if any, alternative sources of information. Victims in these counties who did not contact the police did not receive civil protection.

Third, a stark urban/rural disparity explains county-level variations in use of the CPO remedy. Educational and support resources are more abundant in urban areas than in rural areas. Urban victims of domestic violence generally know more about CPOs and receive more guidance than rural victims. In contrast, rural victims depend on the criminal justice system to point them toward the civil justice system. Statewide, only 20% of CPO case files contain police incident reports. The rate is much higher in rural counties; in five rural counties the rate is 100%. The 20% statewide figure underestimates the level of engagement with police because some plaintiffs do not file their incident reports. Nevertheless, the data suggests that urban victims routinely access civil remedies without police involvement while rural victims rely on police assistance.

The urban/rural divide in access to CPOs correlates with demographic disparities. The affected rural counties in South Carolina have a disproportionate number of residents who are impoverished, African American, or both.

The article’s analysis of the urban/rural divide relies on the metaphor of a “pathway” to civil protection. In urban counties, the pathway runs through several community resources; in rural counties, it runs primarily through police departments. Mitigating this disparity requires creating new pathways in rural counties. Martin therefore proposes government funding of rural advocacy resources. In particular, she suggests reorienting the U.S. Department of Justice’s Rural Domestic Violence, Dating Violence, Sexual Assault, and Stalking Program to emphasize civil rather than criminal remedies.

Martin’s study provides a powerful reminder that designing effective civil remedies requires considering the resources available to potential claimants. As she observes: “It is not enough to enact the remedy and assume people who can benefit will find their way to it.” Yet policymakers and scholars often work in urban environments. They can easily observe urban courtrooms, converse with urban judges, and canvass urban lawyers. These interactions shape their perception of problems and solutions. Rural communities confront problems that are less familiar and require solutions that are more robust. Analyzing disparities in access to CPOs highlights the limits of a one-size-fits-all approach to civil remedies.

What History Really Says About the New Article II Assault on Private Enforcement

May 5, 2025 Adam N. SteinmanAdd a Comment

Adam N. Steinman

If we were on Family Feud and the question was “Name a constitutional obstacle to private enforcement of federal substantive law,” the #1 answer on the board would probably be Article III standing—most notably its requirement that any plaintiff suing in federal court must have suffered a concrete, particularized “injury in fact” as a result of the alleged violation of federal law. After TransUnion v. Ramirez, however, a new answer is moving up the survey: Article II. Although most of TransUnion’s rationale was grounded in Article III, Justice Kavanaugh’s majority opinion also observed that private litigation by ostensibly “unharmed” plaintiffs “would infringe on the Executive Branch’s Article II authority.” TransUnion’s invocation of Article II has accelerated challenges to a host of federal private enforcement regimes, prompting one district court judge in Florida to declare the qui tam provisions of the False Claims Act unconstitutional.

In their excellent article, Nitisha Baronia, Jared Lucky, and Diego Zambrano interrogate this Article II challenge to private enforcement by taking us back in history. Long before Richard Dawson was hosting Family Feud. All the way back to Richard Harrison, the Auditor of the U.S. Treasury Department whose correspondence with Alexander Hamilton sheds light on Founding Era understandings of private enforcement regimes. Baronia, Lucky, and Zambrano marshal a host of historical sources to show that the new weaponization of Article II stands in stark contrast to a “tradition of private enforcement” that existed before, during, and immediately following the Founding. In an age when “history and tradition” dominate so much of the legal landscape, this is an invaluable contribution.

The authors begin by showing what is at stake, quantifying the hundreds of private enforcement regimes Congress has enacted to enforce a wide swath of federal substantive law. Under the new understanding of Article II, however, Congress may not empower unharmed private plaintiffs to enforce public rights and remedies; that power belongs exclusively to the executive branch. The authors justifiably critique the notion that there is, in fact, a “clean dichotomy between public and private rights.” But their principal focus is on history, contesting the originalist bona fides of the Article II challenge on originalism’s own terms.

Turning first to English practice, the authors argue that “most English laws—from crimes, to regulatory statutes, to private disputes—were enforced at the initiative of private litigants.” The early American colonies (and the States they became) likewise embraced private enforcement for civil and regulatory matters, though they were more skeptical of private criminal prosecutions. The authors draw especially persuasive lessons from practice in Massachusetts, which adopted its own separation of powers that was at least as strict as what the Constitution enshrines for the federal government.

The Framers of the federal government had a similar view of private enforcement. Among many interesting insights, the authors note that Alexander Hamilton, shortly after writing the Federalist Papers, drafted a tax law in New York enforceable through private qui tam actions. Hamilton provided another data point while serving as the nation’s first Treasury Secretary, when President George Washington sought his advice on whether he could pardon a customs inspector who had been indicted and fined $400 through an action by an informer suing in the name of the United States. Consulting with the aforementioned Richard Harrison, Hamilton concluded that any pardon could not exempt the inspector from the portion of the fine awarded to the private litigant. This incident and others bolster the view that the Executive Branch did not wield exclusive authority with respect to such enforcement actions. Accordingly, Baronia, Lucky, and Zambrano conclude: “The Americans who framed and ratified the Constitution saw no conflict between widespread private enforcement and the separation of powers in the federal Constitution.”

But that is not all. The authors also examine modern legal doctrines, arguing that the Supreme Court’s case law on criminal prosecutorial power, civil enforcement power, standing, state action, and nondelegation coheres with Founding Era evidence showing the constitutionality of civil and quasi-civil private enforcement. They close, however, by recognizing three discrete areas where private enforcement regimes might transgress our constitutional structure: (1) civil actions that are tantamount to a criminal prosecution; (2) civil actions to enforce the federal government’s own property interests; and (3) private enforcement regimes that “crowd out” the executive branch from playing any role in enforcing or influencing the relevant area of federal law. Beyond these narrow exceptions, the Article II challenge should be rejected; “private rights of action need not be placed under a microscope.”

The relationship between Article II and private enforcement has crucial implications for our constitutional structure, civil litigation, and the enforceability of federal substantive law. I have offered my own thoughts on this question in a forthcoming article—as have others—and the issue is very much on the front burner in the academy and the courts. As these Article II challenges percolate through the federal judiciary, the deep, sophisticated historical analysis offered by Baronia, Luck, and Zambrano is a timely, compelling must-read.

The Interbellum Circuit Justices

Apr 18, 2025 Steve VladeckAdd a Comment

Steve Vladeck

Most of what lawyers learn about the “Interbellum Constitution”–i.e., constitutional law between the end of the War of 1812 and the beginning of the Civil War—comes from the handful of major Supreme Court decisions of that era that law schools still teach as part of the required first-year curriculum. McCulloch v. Maryland for the supremacy of the federal government vis-à-vis the states; Gibbons v. Ogden for Congress’s power over interstate commerce; Dred Scott (and maybe Prigg v. Pennsylvania) for slavery; Martin v. Hunter’s Lessee for the relations between state and federal courts; and maybe, if a professor is ambitious enough, more complicated fare like the Passenger Cases. Through modern eyes, we view the great constitutional debates of the era largely (if not exclusively) as those that played out in the pages of the relevant Supreme Court reports—as compiled by Henry Wheaton (1816–27), Richard Peters (1828–42), or Benjamin Chew Howard (1843–60).

But in her magisterial new history of the constitutional debates of the era, legal historian Alison LaCroix expands her (and our) horizons beyond the modest contributions of the Supreme Court of the era and to the broader debates that played out on the ground—including, critically, in the justices’ rulings and opinions while riding circuit. On everything from the nature of the union to the scope of Congress’s power under the Commerce Clause to the status of Native American tribes to the intractable moral, political, and legal debates over slavery, our understanding of the debate over “federalism” during the interbellum period has been unhelpfully binary—pitching everything in stark “federal” vs. “state” terms. LaCroix’s book documents the reality of a “federalism of fractals” that was far more nuanced and jurisdictionally interdependent than the most famous Supreme Court decisions might suggest—where states and the federal government were not the only players and where the contest for power was more complicated than a constant antipodean tug-of-war between state capitals and Washington.

One of the many striking features of LaCroix’s wide-ranging narrative (who knew that William Wirt was such a key player!) is the role that justices played in this story while they were away from Washington—in various rulings they handed down while “riding circuit,” i.e., comprising (alongside the local district judge) the circuit court for each of the federal district courts of the era. Although the fact that the justices rode circuit until 1911 (and regularly sat as circuit judges until after the Civil War) is well known today, we devote little attention to the justices’ decisionmaking output qua circuit judges.

LaCroix’s book drives home the extent to which that neglect comes at the expense of our understanding not just of some of the key players, but of the context in which more famous moments unfolded. It introduces contemporary readers to Chief Justice Marshall’s massively important 1820 ruling on circuit in The Brig Wilson—which helped to both presage and shape the arguments about Congress’s commerce power that the full Court would take up four years later in Gibbons. It reminds us of the better known (but still obscure) circuit-level rulings by Justice Bushrod Washington in Corfield v. Coryell, and by Justice Story in La Jeune Eugenie, both of which had significant downstream effects on key legal doctrines.

One of the already compelling book’s more-compelling anecdotes highlights Justice William Johnson’s handling of Elkison v. Deliesseline, a fraught early-1820s dispute over the validity of South Carolina’s “Negro Seaman Act,” which required the incarceration of all Black men who arrived in the state as part of a ship’s crew for the duration of their vessel’s stay in port. When the ship left, the captain could either pay the costs of his crewmember’s detention to bring him back aboard, or the crewman would be sold into slavery.

Johnson, a slaveholding South Carolinian appointed to the Court in 1804 by President Thomas Jefferson, ruled that the act was unconstitutional—inconsistent with both the federal Constitution (perhaps the first ever application of what we now call the “Dormant Commerce Clause”) and an 1815 treaty between the United States and Great Britain (whose flag flew over the ship at issue in Elkison), which had guaranteed “reciprocal liberty of commerce.” Johnson also concluded, however, that he lacked the power to free Elkison—something Congress indirectly remedied in 1833 when, in response to the Nullification Crisis, it authorized federal courts, for the first time, to direct writs of habeas corpus to state jailers.

The Elkison episode is but one of many vignettes LaCroix recounts across the book’s nine chapters. But it illustrates LaCroix’s careful, archive-driven reconstruction of the public debates of the time—which drives home not just the shifting alliances under which the “Interbellum Constitution” was fleshed out (including how next-door neighbors Georgia and South Carolina parted ways on key federalism issues shortly after Elkison), but the depth of the constitutional arguments that took place far from the Supreme Court’s dark and musty courtroom on the first floor of the still-incomplete U.S. Capitol.

The Interbellum Constitution is first-rate legal history and constitutional law scholarship. But it also reminds those of us whose work focuses on the courts that there was plenty of significant decisionmaking by lower courts—whether staffed by Supreme Court justices or otherwise—prior to the Civil War. Many of those rulings aren’t reported in the notoriously incomplete Federal Cases reporter. But that shows why proper legal history, as opposed to law-office history, remains critical to our contemporary constitutional understandings. At a time when courts are relying ever more often on “history and tradition,” LaCroix’s book is a powerful and persuasive reminder that ascertaining our history and tradition takes a lot more work than dusting off old volumes of case reports—and that, when properly unearthed, that history has a habit of making simple debates look far more complex.

From Frankenstein’s Monster to Zombie Litigation

Apr 4, 2025 Linda S. MullenixAdd a Comment

Linda S. Mullenix

In 1976, a decade after the complete overhaul of Rule 26 class action procedure, Abram Chayes observed that the amended rule had accomplished a significant paradigm shift from “traditional” litigation to a new model of public law adjudication. Chayes described five characteristics of traditional litigation: (1) the lawsuit is bipolar, (2) the litigation is retrospective, (3) the right and remedy are interdependent, (4) the lawsuit is a self-contained episode, and (5) the process is party-initiated and party-controlled. The new public law model is sprawling and amorphous, subject to change over the course of the litigation, suffused and intermixed with negotiating and mediating processes at every point, with the judge as the dominant figure in organizing, guiding, administering, and implementing relief. Arthur Miller observed the same paradigm shift that year, noting that critics of the new procedural model characterized it as a Frankenstein’s monster. The label has stuck.

Professor Maya Steinitz introduces a new appellation into the lexicon of aggregate dispute resolution: “Zombie litigation.”

In this interesting and compelling article, Steinitz describes twenty-first century shift in aggregate litigation to a model employing complicated financial arrangements implicating significant ethical and professional responsibility issues. Novel financial transactions have created portfolio financiers who collect multiple similar cases and who desire to continue aggregate litigation, while individual and group claimants may have no desire to initiate, be part of, or to continue with an aggregate litigation. This phenomenon of financiers working on behalf of their own interests and against the interests of clients creates Zombie litigants.

Steinitz’s article is part of the growing commentary inspired by the advent of third-party financing in class action and MDL litigation in recent years. She traverses critiques and builds on the ethical conflicts and professional responsibility issues outsider intermeddling in aggregate litigation create. Steinitz’s more-nuanced model layers on new actors who create portfolio funding and secondary trading in legal claims to explain how self-interest compromises the attorney-client relationship and, more broadly, undermines the public civil justice system.

To illustrate how Zombie litigation develops, Steinitz hypothesizes a litigation scenario consisting of four actors: “BigCorp,” a repeat player in large scale litigation; its outside counsel “BigLaw,” which approaches BigCorp with a financing deal from “BigFin,” a leading player in the outside litigation financing industry; and “BigPartner,” a rainmaking partner at BigLaw who serves as lead counsel. Steinitz traces the interaction of these players and their conflicting interests as litigation proceeds, eventually showing how BigFin might attempt to block a settlement that BigCorp, BigLaw, or Big Partner desires. BigFin’s pressure continue litigation against other actors’ interests makes BigCorp and its adjuncts Zombie litigants, not wanting to continue in litigation it initiated but forced to do so.

Steinitz canvasses the array of conventional ethical and professional responsibility issues. She hones on plaintiff autonomy over a case and the concomitant problem of third-party funder power over settlements. She discusses the problems relating to litigant control over individually funded cases and in aggregate litigation. The article analyzes the difficulties raised by undisclosed portfolio financing, secondary claims markets, unregulated aggregation devices, and moral hazards.

The remainder of the article explores ethical and professional responsibility issues that the new portfolio financial models and BigFin financial meddling in complex dispute resolution raise. She argues for resuscitating champerty to address the burgeoning problems of complicated financing arrangements and third-party claim dealing. In states that have abolished that doctine, she endorses more robust application of unconscionability, equity, and public policy to rein in abuses leading to Zombie litigation. She also invokes doctrines of abuse of process and the real party-in-interest rule as procedural avenues to curb portfolio financier. She highlights the public policy in favor of settlements, arguing that granting third-party control over settlement decisions runs afoul of this strong public policy.

Finally, Steinitz endorses enhanced judicial supervision as an additional and perhaps ultimate means for dealing with a “Zombie Apocalypse”. Taking an old page from an old procedure book, she invokes managerial judging–the fiduciary role that the judiciary is supposed to play in protecting the interest of plaintiffs, especially in aggregate litigation. She argues for more robust supervision through case-specific orders and standing orders.

While Steinitz’s article fits comfortably within the corpus of legal analysis of litigation financing, her article is worthwhile reading for its nuanced explication and analysis of the complicated phenomenon of BigFin’s portfolio financing and its impact of litigant autonomy and control. At any rate, multiple points to Steinitz for introducing the label “Zombie litigation,” which, if nothing else, is fun.

Increasing Interventions by Chief Justice Roberts to Address Increasing Interruptions in Oral Argument

Mar 21, 2025 Suja A. ThomasAdd a Comment

Suja A. Thomas

I feel like I am late to the party. Years ago, in 2017, Tonja Jacobi and Dylan Schweers wrote an influential article showing female Supreme Court Justices were disproportionately interrupted by male Justices and advocates. Fortunately, because Professor Jacobi sent me an old school hard copy of her newest article, I am now aware of her previous work and her new article co-authored with Matthew Sag. This new piece examines how, if at all, the atmosphere has changed at the Supreme Court. The short answer is some is the same. Some is different.

In the first article, Professor Jacobi and Schweers discovered a historical increase in interruptions since the 1990s and also that there was a gendered aspect to interruptions. Between 2004 and 2015, female Supreme Court Justices were interrupted up to three times as much as their male colleagues. After this first study was released, the Supreme Court actually made some change to its oral argument structure. Among other changes, during oral argument, each Justice has dedicated time to engage with advocates.

In this new piece, Professors Jacobi and Sag follow-up on whether gendered interruptions lessened and whether Chief Justice Roberts intervened more as a referee in the last five years. The study matters because oral argument is important for the Justices and for the public. In addition to Justices obtaining information and asserting power that can affect coalitions and the ultimate opinion, oral argument serves a role to give legitimacy to the decision-making of the Court.

I imagined a study like this would be difficult particularly because of the coding. Turns out, however, coding for interruptions was easy because of the manner in which the court reporter transcribes the oral argument. The authors acknowledge that it was more difficult to code interventions. For example, many different words are used when the Chief Justice intervenes.

The study examines four different eras including part of the Rehnquist era and three different eras of the Roberts Court. From 1997-2004, female Justices were interrupted 16% more than their male colleagues. From 2005-2008, they were interrupted 70% more than their male colleagues. From 2009-2018, females Justices faced interruption 108% more than males. Finally, from 2019-2021, interruptions were 53% higher for female Justices. It’s not a pretty picture, and the latter numbers, which are better, may be the result of the pandemic.

We learn other interesting information. Justice Kennedy regularly interrupted other Justices, and the Justices interrupted Justice Sotomayor most commonly. We also learn that when Justices realize they have interrupted another Justice, they defer more to their male Justices than the female ones who were interrupted. Additionally, the article shows that Justices interrupted Justice Barrett 50% more than male Justices. However, Justice Barrett was interrupted less frequently than the liberal female justices.

Like the first study, the article also studies interruptions of Justices by advocates. Unlike the Justice-to-Justice interruptions, there are signs that the gender disparity in interruptions by advocates is disappearing.

After setting forth its findings on interruptions, the article addresses whether the Chief Justice has intervened more and if he intervenes because of the gendered nature of interruptions. For the most part, the article shows an increase of interventions over time and shows that the Chief Justice intervened much more often to the benefit of female Justices who were interrupted. There are other interesting findings, such as the Chief Justice protects Justice Alito the most and Justice Gorsuch the least—findings that may be consistent with other reported relationships and dynamics.

To say the least, the first article and this one are troubling. Gender matters, and even when we know it matters, behavior does not always change. On the other hand, there is some hope with the actions of the Chief Justice. Although he rarely intervenes, consciously or not, his actions show an acknowledgment of a serious problem and that he is trying to help correct the problem.

I have huge admiration for the work of Professors Jacobi and Sag and Dylan Schweers who, through their careful study, keep the public and the Court aware of phenomena that could affect the ultimate decision-making of the Court and, thus, the course of the law.

From “Information” to “Advice” in the Provision of Legal Services

Mar 5, 2025 Robin J. EffronAdd a Comment

Robin J. Effron

The access-to-justice movement—comprised of lawyers, activists, and scholars—has traditionally focused on ensuring people have access to legal resources, tribunals, and lawyers to pursue remedies or mount defenses. As Kathryne Young says in Getting Help, the conventional approach asks: “How do we, as lawyers, serve those seeking help? How do we provide more legal services to lawyerless parties?” But this framework rests on two problematic assumptions: that people recognize their problems as legal in nature, and that the primary barrier to justice is a lack of affordable legal services. Young’s research exposes the error in both assumptions.

To explore this gap, Young conducted an empirical study using a nationally representative survey, gathering quantitative and qualitative data about how Americans approach complex problems with legal implications. Her findings reveal significant variations in how different demographics conceptualize legal problems, whom they trust, and what kinds of assistance they find valuable. These variations correlate with factors including race, gender, political affiliation, and religiosity, painting a nuanced picture of help-seeking behavior in legal contexts.

Getting Help highlights a crucial disconnect in current regulatory frameworks, between providing information and providing actual advice. While many organizations provide legal information, they are barred from offering legal advice due to licensing restrictions and rules about who can practice law. The data shows that this distinction between information and advice undermines effectiveness—people often find mere information unhelpful for addressing legal issues, making them less likely to seek help from these organizations in the future, knowing they cannot receive the personalized guidance they need.

The root of this problem lies deeper than simple regulatory constraints. Current rules governing legal practice emerged from an adversarial model of lawyering, viewing legal advice as proprietary guidance within the exclusive attorney-client relationship. This model envisions lawyers as zealous advocates in disputes, rather than as general problem-solvers helping clients navigate legal challenges. While many lawyers operate beyond this narrow conception, the adversarial framework continues to influence regulatory bodies, maintaining lawyers’ monopoly on legal advice-giving.

This creates a troubling paradox: organizations can provide information about most aspects of a problem but must leave the legal components unaddressed. As Young argues, this regulatory structure fails to “connect ordinary people to legal solutions.” The result is that legal aspects of problems “fester and worsen” while other dimensions receive attention and support.

Young correctly blames this problem on the rules regulating lawyers and lawyering. But it is worth considering whether a deeper problem stands in the way of conceptualizing regulatory reform that would broaden the pool of practitioners who could lawfully dispense legal advice. In an adversarial system, “legal advice” is clothed in the exclusive relationship of zealous representation and the tight bond of attorney/client privilege. The lawyer is there to help her client win, not simply to find a solution to a legal problem in which the client may or may not have distinct adversaries. Of course this does not describe the work of many lawyers who provide legal services and dispense advice. But that platonic picture of lawyer as advocate in a dispute makes it difficult for regulatory bodies to conceive of and to understand advice-giving in the broader sense. Even when lawyers are dispensing non-adversarial advice, the specter of possible adversarial entanglement elevates licensed lawyers to their monopoly position. Thus emerges the trap in which people seeking advice are presented only with information, leaving people free to “seek guidance about most other aspects of their problem” while the legal dimensions of their problems, left unattended, intensify.

Solutions to access-to-justice problems require not just regulatory reform to expand who can provide legal advice. They require a fundamental reconceptualization of how legal guidance fits into broader problem-solving frameworks. Understanding how people seek and use help—rather than how we assume they should—must inform any meaningful reforms to improve access to justice.

Young’s most urgent cry is for changes to the rules for who can provide legal advice. Until states relax the regulations that restrict advice-giving to the small supply of formally credentialed lawyers, the legal profession will serve more as “gatekeeper than guide.” But Young’s research shows that relaxing barriers on the practice of law is a necessary but not sufficient solution to the problem. Once more actors are empowered to provide or connect people with legal advice, these systems must be matched with the specific ways in which people seek help and they must be attentive to the fact that the manner and places in which Americans seek help can differ based on the identity of the client. Young contends that a glib reliance on tech-based solutions are likely to fall short. Instead, help should be embedded in a holistic ecosystem in which access to legal help is intimately connected to the resources needed to address the non-legal aspects of people’s problems.

A New Approach to Personal Jurisdiction

Feb 19, 2025 Howard M. WassermanAdd a Comment

Howard M. Wasserman

Personal jurisdiction sits in a state of flux. A decade-and-a-half of renewed Supreme Court engagement—with another case on the way this Term—has changed some things, failed to clarify longstanding uncertainty, and sowed new confusion. The originalist turn has reached personal jurisdiction, with arguments for returning to our jurisdictional origins.

Paul Schiff Berman predicts The Future of Jurisdiction. He places the current era in an historic evolution of American society and jurisdictional doctrine and revises jurisdictional rules to better fit the needs and reality of the 21st century. He offers four key insights a about personal jurisdiction; those insights lay the foundation for his new approach.

Insight # 1: The Current Transition Period

Berman divides the law of personal jurisdiction into four epochs.

Pennoyer v. Neff instantiated the territoriality that defined 19th-century America, in which geographic loyalties ran to the local community and the next town or city block constituted alien territory; defending in another state imposed unreasonable psychic, as well as physical and practical, burdens. But rapid societal change outstripped Pennoyer—advances in transportation and communication and centralization of economic and political activities shrank the physical and psychic distances of interstate travel. Courts responded with a series of legal fictions about in-state presence and consent, allowing them to assert jurisdiction over out-of-state defendants while adhering to Pennoyer’s insistence that courts lack authority over persons outside the state.

International Shoe recognized that Pennoyer’s strict territorial approach failed in modern society. The Court created a new, more flexible jurisdictional framework, establishing as doctrine the effective analysis under the legal fictions—whether the defendant had sufficient connections to the state and whether the lawsuit concerned activity occurring in that state. But Shoe encountered the same problems as Pennoyer—changes in technology, expansions of corporate activity, and changes to the nature and scope of economic activity stressed the flexibility of this vague standard. Shoe required frequent judicial intervention that failed to reach consensus on the rules or concepts. (The Supreme Court has had two discrete periods of extensive activity in this area—1977-90 and 2011-Present). Globalization of business and supply chains and the rise of online commercial and communications activity have sped the destabilization of the Shoe regime.

Berman defines the current era as one of transition, comparable to the decades of legal fictions between Pennoyer and Shoe. Judges apply the Shoe formulation while recognizing it does not reflect the new societal reality.

Insight # 2: Dormant Commerce Clause as the Answer to Doctrinal Tension

Pennoyer and Shoe ground jurisdictional limits in due process. But the Court has never resolved a tension over whether due process protects individuals against the burdens and unfairness of distant litigation or whether it limits the power of courts in one state to interfere with the powers of a sister state or whether it does both (what Justice White described as the “Due Process Clause, acting as an instrument of interstate federalism”). Modern technology and communications reduce (if not eliminate) most burdens of distant litigation. Courts thus should focus on the real question—whether the state asserting jurisdiction has sufficient connection to the underlying events or to the litigants.

That conceptual change prompts a constitutional change. Rather than due process, jurisdictional limits should be analyzed under the dormant Commerce Clause, which asks the right question—whether one state’s exercise of dominion over a dispute unduly infringes on the adjudicative power of another state and whether one state’s exercise of jurisdiction might produce intolerable inconsistent regulation for interstate defendants. Reflecting Justice Alito’s solo concurrence in Mallory, Berman argues that the dormant Commerce Clause allows courts to analyze the core question rather than fictional arguments about burdens and consent.

Insight # 3: The Continuum of General and Specific Jurisdiction

The one area in which recent cases have produced a certain doctrinal sea change involves the distinction between general and specific jurisdiction. By the 1980s (when the Court’s first decision wave ended), they existed on a rough continuum—the fewer the defendant’s state contacts, the more important that those contacts relate to the lawsuit to create specific jurisdiction; the greater the defendant’s state contacts, the less important that those contacts relate to the lawsuit to create general jurisdiction.

But the Court has rejected that continuum in favor of a sharp divide between the forms of jurisdiction. General jurisdiction exists where the defendant is “essentially at home,” likely limited to an individual’s domicile and an entity’s place of incorporation and principal place of business. This change requires an expansion of specific jurisdiction. That places pressure on the vague question of “relatedness” between contacts and claim, because an out-of-state defendant’s unrelated contacts never establish jurisdiction.

Insight # 4: Community Affiliation

Recent cases introduce two new concepts—“affiliations” replacing contacts and “community” replacing territorial sovereign. Whether the linguistic change was intentional, it offers a preferable rubric. Rather than counting contacts, courts ask whether “the community asserting dominion ha[s] sufficient connection to the parties or the dispute so as to justify that assertion.” Berman illustrates with two Fourth Circuit decisions rejecting jurisdiction where Virginia (the state in which the suits were brought) lacked the necessary community affiliations—a Spanish citizen and a Spanish city fighting over the use of the city’s name and a local Connecticut newspaper writing about Connecticut individuals.

Seven Principles of a New Approach

Berman acknowledges that we cannot codify a jurisdictional standard “that anticipates all permutations of human activity and provides a single definitive answer.” Any grand theory “would instantly become obsolete as new advances in technology, science, communications, and transportation keep galloping on ahead of the lumbering efforts of law to catch up.” He instead offers seven principles as a framework to handle the unique problems of online interaction, deterritorialized data, and global supply chains.

I list the principles here; the reader should see Berman’ full explanation, elaboration, and application: 1) Focus on community affiliation rather than sovereign contacts; 2) Ask whether the community can legitimately exercise dominion over the lawsuit rather than whether jurisdiction unfairly burdens the defendant; 3) Treat general and specific jurisdiction as points on a continuum of relatedness and quantity of contacts; 4) Disregard the territorial location of data or servers; 5) Consider place of of incorporation as relevant but not dispositive; 6) Consider the size, sophistication, and economic breadth of a defendant; and 7) Consider effects of conduct on a community even if the actor is not otherwise affiliated with that community.

Berman’s article exemplifies the best normative procedural scholarship—exposing where courts have gone astray and proposing a new jurisprudential regime. Written in clear and engaging prose, Berman offers a great read for the audience and an important guide for the courts.

Preserving Incentive Awards

Feb 5, 2025 Christine BartholomewAdd a Comment

Christine Bartholomew

Since 2005 and passage of the Class Action Fairness Act, scholars have bemoaned the ongoing attack on class action procedures. Much of this work has focused on judicial reinterpretations of Federal Rule of Civil Procedure 23. Plaintiffs face new prerequisites to aggregating their claims such as: (1) stricter pleading standards; (2) the judicially created “ascertainability requirement”; and (3) earlier and more frequent Daubert motions, just to name a few. These increased procedural hurdles are already hampering private enforcement efforts. In 2022, the Eleventh Circuit lobbed a new challenge when it banned incentive awards for class representatives in Johnson v. NPAS Solutions, LLC. Alexander J. Noronha explores the decision—warts and all—in his student note.

Incentive awards are never guaranteed; plaintiffs file motions articulating why class representatives deserve recompense beyond their share of a settlement or judgment award. Judges evaluate these requests using multiple factors to consider representatives’ efforts on behalf of the class. Since passage of Rule 23 in 1966, courts in every circuit have approved such motions under the right circumstances—despite Rule 23 providing no explicit authority for such awards. In categorically foreclosing such awards, the Eleventh Circuit upended close to fifty years of precedent.

Noronha begins by succinctly chronicling the general history of class actions and the specific history of incentive awards. He details how such awards are rooted in equity, not statutory or constitutional authority. Courts and commentators have rationalized such recompense as necessary given services rendered to the class, including time, labor, and reputational costs incurred. Noronha maintains that these awards play a critical role in incentivizing individuals to serve as class representatives and private attorneys general, thereby advancing access to justice and enforcement of laws critical to the public interest.

With this background in place, Noronha moves to Johnson. He explains how the Eleventh Circuit anchored its reasoning in late nineteenth-century Supreme Court jurisprudence, primarily Trustees v. Greenbough (1881), an equity suit brought by a creditor alleging wrongdoing by the trustees of a fund. The prevailing plaintiff sought a substantial portion of the trust fund to offset travel expenses and pay him a salary for pursuing the suit. The Court permitted recovery of reasonable costs and attorney’s fees, creating what has become known as the “common fund doctrine.” But the Court denied plaintiff’s request for compensation for personal services and private expenses. Applying this hoary precedent, the Eleventh Circuit denied the request for an incentive award, deeming it “part salary and part bounty” and thereby improper.

Noronha argues that the Eleventh Circuit “overlooked crucial historical and legal context.” This dismantling of the Eleventh Circuit’s rationale represents the article’s biggest contribution. First, Greenough is the product of an anachronistic form of litigation, too distinguishable from the modern class action to warrant barring incentive awards. Relatedly, Greenough was an “equity receivership” suit, a form of litigation once commonplace but now obsolete. Thus, the decision proves a faulty foundation from which to render a blanket prohibition against class action incentive awards. As Noronha points out, equity receiverships are a closer analogue to Chapter 11 reorganizations than class actions.

Noronha next articulates how the policy concerns underlying Greenough do not translate to the class action context. Greenough sought to protect against creditors meddling with trust funds for their personal gain. But Federal Rule of Civil Procedure 23 provides safeguards against such meddling. The Eleventh Circuit failed to explain why further protection, in barring incentive awards, was warranted for class actions.

Finally, Noronha distinguishes the modest amounts (a few thousand dollars) plaintiffs seek as incentive awards from the “approximately $1.3 million in 2002 dollars” the Greenough plaintiff sought. The plaintiff in Greenough essentially demanded the equivalent of ten years salary simply for suing. In contrast, class representatives do not receive huge amounts of money for simply suing; they seek compensation for their risks and contributions, based on a multi-factor judicial test.

By debunking the primary authority on which the Eleventh Circuit relied, Noronha provides other circuits ample justification to reach a contrary conclusion. Nonetheless, Noronha proposes additional solutions should Johnson spread. One novel idea reconceptualizes incentive awards as costs, moving them squarely within the purview of costs and fees recoverable under Federal Rule of Civil Procedure 54(d). Unlike incentive awards, which lack statutory grounding, Rule 54 affords courts clear authority to permit discretionary cost awards to class representatives. Although attorneys have yet to rely on this rule to request incentive awards, Noronha convincingly argues how this approach is both historically and legally defensible.

On Behalf of All Others reminds us of the value of student notes in legal scholarship. Noronha’s article offers new insights, particularly regarding the history of incentive awards—limited as that history may be. When well done, as here, a note can illuminate corners of procedure heretofore underexplored.

Clarifying Constitutional Torts

Jan 7, 2025 James E. PfanderAdd a Comment

James E. Pfander

In a bracing engagement with a constitutional tort doctrine that he rightly describes as in disarray, Garrett West offers a diagnosis and proposes a cure. The doctrine has an inconstant commitment to the history of common law tort and an off-again, on-again engagement with first the nullification and then the affirmative rights (or duty) models of constitutional litigation. He offers a “deceptively simple” cure for the problems: with a better understanding of the nature of constitutional duty, the Court might better construct a coherent body of law to define constitutional rights and remedies.

Recounting the troubles with constitutional litigation, West begins with a familiar set of concerns. Despite the recognition of constitutional tort liability in Monroe v. Pape for state action claims under § 1983 and in Bivens v. Six Unknown Agents for claims against federal officers, limits on the doctrines narrow access to remedies. Bivens gives way in the hands of a Court wary of recognizing rights to sue, while forms of absolute and qualified immunity complicate effective redress. West also highlights the Court’s inconsistent approach to defining the elements of a constitutional tort, sometimes drawing on common law tort doctrine to fill out the elements and sometimes focusing instead on the constitutional text and related considerations.

Apart from recounting such problems, West offers an explanation. Nineteenth-century constitutional litigation often proceeded on a private or common law model in which the Constitution operated to nullify claims of official justification. In that world, official duties and individual rights were imposed and conferred by private law, often the general law of tort. Officials who were sued for violating those rights and duties would attempt to justify under state law and the constitutional provision in question could nullify that justification, leaving the official subject to liability at common law. Many early constitutional claims, including Osborn v. Bank of the United States, arose in this nullification model of litigation.

But nullification works only when private law rights and duties map onto the constitutional protections in question and remain under the control of federal judges keen to ensure the effective enforcement of the rights in question. Sometimes private law falls short—in Ex parte Young, private law failed to impose a duty on the attorney general of Minnesota to refrain from enforcing an unconstitutional state law. The Supreme Court thus chose to recognize a federal duty instead, one that it distinguished from that supporting injunctive relief based on private law (as in Osborn) and justified in part through precedent and in part through necessity. Since Ex parte Young, constitutional rights and duties have developed a life of their own, no longer tethered to the confines of private law. Monroe and Bivens confirm the switch from private to public law as the source of the duty being enforced.

That switch may have had important consequences for other developments. West shows that the exclusionary rule developed as a nullification rule, foreclosing the use of certain evidence at trial to prevent a form of self-incrimination. During the same term that Monroe came down, Mapp v. Ohio incorporated the exclusionary rule against the states. In doing so, the Court arguably reconceptualized the analysis, viewing the Fourth Amendment as the source of a constitutional duty imposed on police officers to refrain from unreasonable searches and seizures. Rather than preventing a self-incrimination violation that might occur at trial through nullification, suppression of the evidence was meant to redress the official’s duty to refrain from a wrongful search.

As West shows in a careful assessment of doctrinal nuance, all constitutional limitations on government power do not necessarily translate into official duties. Consider the dormant commerce clause (DCC) or the contracts clause, two restrictions on state power that were enforced through nullification remedies in the nineteenth century. The Court glossed over that conceptual limit in concluding during the 1990s that the DCC created rights affirmatively enforceable under section 1983 rather than through nullification. Similarly, in the relatively recent Free Enterprise Fund v. Public Company Accounting Oversight Board, the Court upheld the right of individuals to challenge the structure of an agency on grounds that it interfered with the President’s removal powers under Article II. But limits on government power can be enforced or remedied through nullification; not every such limit translates into an official duty enforceable through injunctive relief.

West’s framework ramifies in a wide range of useful directions. He criticizes the use of common law tort to define the elements of constitutional tort claims, arguing persuasively that the elements should derive from the nature of the constitutional duty itself. Incorporation of the common law will tend to create a remedy that duplicates existing tort remedies without addressing the distinctive interests that animate the constitutional claim. He also helps us better understand pockets of absolute official immunity, as constitutional duties may differ for executive and legislative officers. More generally, West shares the reluctance of constitutional scholars such as Dick Fallon to define constitutional remedies by reference to private law of tort; private law can no longer supply a framework with which to vindicate the constitutional interests in question. The Court cannot turn back the clock to the nineteenth century world of nullification. The loss of general law, occasioned by the Erie doctrine, means that the framework for defining private law duty and right no longer lies within the control of the federal judiciary. Lacking authority to shape the rules of private law to vindicate federal interests, as Chief Justice Marshall did so adroitly in Osborn, the Court has been driven to the elaboration of constitutional law duties. That elaboration, in turn, has led to recognizing a host of rights that lack a foundation in private law.

West thus rejects the restoration of the nullification model proposed by such scholars as John Harrison, just as he rejects Harrison’s anti-suit injunction account of Ex parte Young. Instead, West leans into better defining constitutional duties. Such definitional efforts would foreground the text and ask if the provision operates to impose a duty on the officer in question. Rather than wholesale constitutionalism, in which every provision establishes an enforceable duty, West would have the Court create and administer a more nuanced body of law, a retail law of constitutional duty.

Puzzles remain. One cannot read the nineteenth-century cases without concluding that the Court worked hard to reshape the underlying general law to ensure effective remedies within the prevailing nullification regime. Sometimes, as Professor Woolhandler has shown, the Constitution was apparently deployed to force states to afford remedies that were unavailable in state court. In the Virginia Coupon Cases, for example, some combination of the due process and contract clauses nullifies state restrictions on general law remedies and imposes an enforceable federal duty on the collector to accept the disavowed coupons themselves. The cases suggest that the sharp line between nullification and duty may have blurred in the late nineteenth century, leading the Court to view its acceptance of the federal duty model in Ex parte Young as an incremental step.

While we have much to learn, West’s work promises a more fruitful framework for the analysis of constitutional torts. And it comes at the right time, as the American Law Institute rolls up its sleeves to prepare a Restatement of Constitutional Torts.

(In Defense of) Judicial Institutionalism

Nov 22, 2024 Marin K. LevyAdd a Comment

Marin K. Levy

For much of his tenure as Chief Justice, John G. Roberts has been described as an “institutionalist.” It has been so common to see the word associated with the Chief as to almost be his epithet. (Homer gave us “the man of twists and turns, Odysseus” and the modern Court gave us “the institutionalist, John Roberts.”) But October Term 2023 has prompted a discussion of whether the label still fits. And beyond that, we may wonder if there are any others at One First Street (see, e.g., Justice Elena Kagan) to whom the descriptor applies.

But before we can engage in a meaningful conversation about whether any members of the current Court are institutionalists, we must address what we mean in using the term. We might share a general sense that the word denotes taking account of the interests of one’s court when deciding a case—but what interests, exactly? And should we be for institutionalism or against it? Or, to put a finer point on it, when should institutional considerations (however defined) eclipse one’s own independent judgment of how a case should be decided? Enter Rachel Bayefsky’s forthcoming article—Judicial Institutionalism—at just the right moment.

Judicial Institutionalism offers the most comprehensive treatment to date of this important and complex concept. The article begins by undertaking the difficult task of defining what institutionalism means within the judicial setting. Bayefsky’s definition centers on preserving the federal courts’ effective authority, which encompasses both sociological legitimacy (the public’s confidence in the courts) and efficient administration (the smooth working of the court system within its resources). After unpacking what institutionalism might mean, Bayefsky addresses whether we should favor judges who favor it—concluding that we should, for reasons ranging from the need to maintain the rule of law in a divided society to the need to ensure that cases are decided without delays that impede the workings of the judiciary.

At this point, one might think that Judicial Institutionalism has done enough—it has defined the concept and defended it. But Bayefsky is just getting started. She goes on to thoughtfully anticipate various concerns and critiques of her positions—chief among them that we should not want the power of the federal judiciary shored up or that even if we should, such shoring up should not be undertaken by the judiciary itself. Bayefsky responds to these concerns before going even further—and works through how institutionalism sits with legal theory and then various theories of legal interpretation. Specifically, the articles makes the claim that institutionalism is not simply a “good thing” from a moral perspective; it is also legally valuable and fits (to varying degrees) within different modes of constitutional and statutory interpretation. (Under Bayefsky’s construction, even ardent originalists and textualists can legitimately consider the courts’ effective authority when engaged in decision-making.) The article concludes by sketching out how institutional considerations should come into play—from deciding whether to grant a writ of certiorari to determining the scope of an equitable remedy—and how open judges should be about taking such considerations into account.

Stepping back, Judicial Institutionalism is quite ambitious and we are the ones who benefit by it. To mix topographical metaphors, it dives deep into a vitally important topic, yet also manages to cover a great deal of terrain. Building on prior scholarship (from Neil Siegel’s work on judicial statesmanship to Richard Fallon and Tara Grove’s work on conceptions of legitimacy), Bayefsky brings us to a new place. We end up with a thoughtful and carefully executed treatment of a concept that will help us better understand the judiciary. Now to be sure, not everyone will be convinced of every step along the way. But one of the many virtues of the article is that it is clearly mapped out, leaving the reader to decide how far she will follow the author and where she might part ways—thereby enabling a discussion worth having about institutionalism and the courts today.

We are plainly living through a moment in which some are questioning the legitimacy of our institutions—judicial and otherwise. Where this Court goes and how the public will receive it will depend, largely, on the actions of the Justices—including whether they depart from their personal views on particular legal questions to forge compromise and whether they move incrementally rather than in bounding steps. Again, it is critical for us to be able to speak particularly about whether and how the Justices should weigh these sorts of considerations—Bayefsky’s article equips us to do just that. One hopes that the members of the Court are engaged in the same conversation, given all the “twists and turns” to come.