Volume 78, Number 4

October 2003

“We’re Scared to Death”: Class Certification and Blackmail

Charles Silver

This Article discusses the charge that class actions subject defendants to excessive settlement pressure, so that defendants effectively are blackmailed. Prominent federal judges, including Frank Easterbrook, Henry Friendly, and Richard Posner, have endorsed this proposition, which is drawn from a famous law review article by Professor Milton Handler.

The Article begins by describing the blackmail charge in detail. A close reading reveals four different accounts, some of which are incompatible with others. Proponents have missed these important differences. The Article then assesses the soundness of each version of the blackmail charge. None survives scrutiny. All (except possibly Handler’s) use an analogy to blackmail that is faulty and unhelpful. All make factual assertions that are questionable or unproven, such as the claim that class actions always settle or that risk aversion drives the decision to settle on the defense side. All also need, but lack, a persuasive normative account of settlement pressure, without which it is impossible to show that class action defendants wrongly are coerced.


Confessions of an Ambivalent Originalist

Jack N. Rakove

One of my favorite moments in Larry McMurtry’s wonderful novel, Lonesome Dove, comes when Augustus has to hang Jake Spoon, his feckless former Texas Ranger buddy who has gone bad by throwing in his lot with the murderous Suggs brothers. Gus half apologetically says to Jake, “I’m sorry you crossed the line,” and Jake distractedly replies, “I never seen no line, Gus. I was just trying to get to Kansas without getting scalped.” And soon justice is done.’


Mending the Federal Circuit Split on the First Amendment Right of Public University Professors to Assign Grades

Evelyn Sung

The ability to assign grades to students is an element of a professor’s academic freedom that has been litigated in several circuits with different results. In this Note, Evelyn Sung explores the differences in the methods of analysis employed by the courts to determine the level of constitutional protection appropriately accorded to professors and the extent to which college administrators may exact alterations in professors’ grading policies. Sung evaluates education theory and conducts historical analysis to determine that grade assignment qualifies as symbolic speech under current caselaw. Accordingly, the interest of professors to assign grades must be balanced against the interest of college administrators to promote efficiency in the services they provide, such as the thorough preparation and evaluation of graduating students. The maintenance of standardized grading policies, Sung argues, is at the core of the mission of the public university. A college administrator’s interest in making grades consistent and meaningful must be balanced delicately with a professor’s First Amendment right to assign grades.

Historians at the Gate: Accomodating Expert Historical Testimony in Federal Courts

Jonathan D. Martin

Expert testimony is said to be reliable only when based upon sound method. Historians are often called upon to give expert testimony at trial to help the jury understand the subject matter of the dispute in historical context. Just as scientists must adhere to the scientific method, historians must conform their testimony to the historical method, requiring them to respect the pastness of the past by grappling with the complexity and inconsistency of the historical record and dealing appropriately with contrary evidence. Failure to adhere to the historical method results in unreliable testimony wherein the historian becomes advocate instead of advisor. Unfortunately, the adversarial nature of the courtroom can make historians stray from historical method. In this Note, Jonathan Martin explores the problem of expert historical testimony in federal courts and suggests that the public-law nature of most cases employing historical testimony, as well as a concern for intellectual due process, should prompt federal judges to overcome their traditional reluctance to appoint neutral experts under Rule 706 of the Federal Rules of Evidence. When appointed by the court, Martin argues, historians will serve less as advocates and more as advisors.

Secrets and Spies: Extraterritorial Application of the Economic Espionage Act and the TRIPS Agreetment

Robin J. Effron

Trade secret theft, the unauthorized use and appropriation of proprietary information, recently has received significant attention at both the national and international level. The Economic Espionage Act of 1996 (EEA), the first federal law to address proprietary information, criminalizes the theft of trade secrets. Article 39 of the Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPS), the World Trade Organization (WTO) agreement mandating minimum levels of intellectual property protection for member nations, is the first international treaty to require protection of proprietary information. This Note explores the relationship between the EEA and TRIPS. The EEA is an unusually protectionist trade secret statute, controversial in scope even within the United States. The EEA gives substantive trade secret protection to certain classes of information and actions, providing guarantees that are more extensive than under the TRIPS Agreement. This Note considers these differences in the context of extraterritorial application of the EEA and the sovereignty interests of other signatories to the WTO. It examines the legal framework within which U.S. courts considering the EEA may limit the extraterritorial scope of the statute. Using principles of international law and statutory interpretation, this Note concludes that the extraterritoriality provisions of the EEA can be given a limited construction that gives force to both the statute and the treaty.

The (Un)Favorable Judgment of History: Deportation Hearings, the Palmer Raids, and the Meaning of History

Harlan Grant Cohen

As Americans respond to the events of September 11, 2001, they are being forced to contemplate their place in American history—past, present, and future. This has become particularly stark in the fight over secret deportation hearings. Following September 11, Attorney General John Ashcroft announced that the deportation hearings of “special interest” aliens would be closed to the public. Applying Richmond Newspapers’s two-pronged logic-and-experience test, the Third and Sixth Circuits subsequently split over the constitutionality of the blanket closure. At the heart of their disagreement was the scarce history of deportation hearings and whether such hearings had been closed in the past. In this Note, Harlan Grant Cohen argues that the “history” test applied by the two courts has been misconceived. Drawing upon the history of the Palmer Raids of 1919-1920 and the treatment of Russian and Eastern European immigrants during the first Red Scare, Cohen argues that in examining the secret deportation question, Americans must ask themselves not what they have done in the past, but instead what lessons they should learn from those historical practices. Only with this deeper understanding of the past will Americans truly be able to understand the difficult policy choices of the present.


The Constitutional Right to a Remedy

Thomas R. Phillips

Of all the rights guaranteed by state constitutions but absent from the federal Bill of Rights, the right to a remedy through open access to the courts may be the most important. The remedy clause, which appears in the constitutions of forty states, usually takes one of two basic forms, but courts have interpreted and applied the clause in a variety of different and often contradictory ways. In this address, Chief Justice Phillips traces the development of the remedy guarantee from its inception in Magna Carta and explication by Coke and Blackstone. Many framers of the original state constitutions in colonial America adopted this guarantee as their own, recognizing it as a constraint on both judicial and legislative power. The Chief Justice examines subsequent judicial interpretations of the remedy clause as a potential check on legislative action limiting tort recoveries, particularly in the employment, construction, and medical malpractice contexts. Although he offers several reasons for caution against too robust a reading of the clause, the Chief Justice ultimately posits an approach that aims to protect absolute rights through equal access to justice, while urging state appellate courts to develop a coherent doctrine of remedies jurisprudence that reflects the continuing importance of the right to a remedy.