Volume 87, Number 5

November 2012

Beyond the Private Attorney General: Equality Directives in American Law

Olatunde C.A. Johnson

American civil rights regulation is generally understood as relying on private enforcement in courts rather than imposing positive duties on state actors to further equity goals. This Article argues that this dominant conception of American civil rights regulation is incomplete. American civil rights regulation also contains a set of “equality directives,” whose emergence and reach in recent years have gone unrecognized in the commentary. These federal-level equality directives use administrative tools of conditioned spending, policymaking, and oversight powerfully to promote substantive inclusion with regard to race, ethnicity, language, and disability. These directives move beyond the constraints of the standard private attorney general regime of antidiscrimination law. They engage broader tools of state power, just as recent Supreme Court decisions have constrained private enforcement. They require states to take proactive, front-end, affirmative measures, rather than relying on backward-looking, individually driven complaints. And these directives move beyond a narrow focus on individual bias to address current, structural barriers to equality. As a result, these directives are profoundly transforming the operation and design of programs at the state and local levels. They are engaging both traditional civil rights groups and community-based groups in innovative and promising new forms of advocacy and implementation.

Financiers as Monitors in Aggregate Litigation

Elizabeth Chamblee Burch

This Article identifies a market-based solution for monitoring large-scale litigation proceeding outside of Rule 23’s safeguards. Although class actions dominate the scholarly discussion of mass litigation, the ever increasing restrictions on certifying a class mean that plaintiffs’ lawyers routinely rely on aggregate, multidistrict litigation to seek redress for group-wide harms. Despite sharing key features with its class action counterpart—such as attenuated attorney-client relationships, attorney- client conflicts of interest, and high agency costs—no monitor exists in aggregate litigation. Informal group litigation not only lacks Rule 23’s judicial protections against attorney overreaching and self-dealing, but plaintiff’s themselves cannot adequately supervise their attorneys’ behavior. Plaintiffs’ attorneys may represent thousands of geographically dispersed clients, which fosters collective-action problems and makes individual, case-specific information hard to obtain.

An answer to this monitoring problem comes from an unlikely and potentially controversial source: alternative litigation financing. Self-dealing and high agency costs arise in aggregate litigation principally because of the contingent-fee attorney’s dual roles as agent and investor. These roles can pull lawyers in divergent directions; because attorneys front massive litigation costs, they may be tempted to coerce clients into settling so that they can recoup and profit from their investment. Third-party litigation financing, which involves hedge funds, private investors, and venture capitalists investing in and profiting from large-scale litigation, can ameliorate this critical conflict of interest by allowing the financier to bear the financial risk. Shorn of financial self-interest, the lawyer is then free to act as a faithful agent. Although alternative litigation financing can be controversial, this Article seeks to marry profit-seeking capitalists and aggregate litigation in a way that benefits society as a whole and plaintiffs in particular.


Evaluating Eyewitness Identification in the 21st Century

The Honorable Stuart Rabner

In the Eighteenth Annual Justice William J. Brennan, Jr. Lecture on State Courts and Social Justice, Stuart Rabner, Chief Justice of the New Jersey Supreme Court, discusses the court’s recent decision in State v. Henderson. In Henderson, the court revised the longstanding legal framework for testing the reliability of eyewitness identifications. Justice Rabner discusses the case law underlying the traditional framework, the social science that prompted the court’s decision, and the revised framework now in place. He concludes by emphasizing the importance of eyewitness identification in our criminal justice system and calling for continued judicial attention to accepted scientific evidence on eyewitness reliability.


Beyond the Crisis: Dodd-Frank and Private Equity

Joseph A. Tillman

The history of the U.S. financial markets is peppered with economic crises. A few scholars have argued that in the wake of these events, the combination of widespread media attention and a flurry of congressional action has led to the hurried creation of sweeping remedial legislation. Indeed, these scholars maintain that in seeking to put out the flames of panic and financial instability, such regulations have often been mismatched to the problems they intended to address. My Note enters the fore and argues that the Volcker Rule and the amendments to the Investment Advisers Act of 1940, promulgated in response to the Financial Crisis of 2008 as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act, are examples of financial market regulation that go beyond the concerns that led to their enactment. Specifically, this Note explores these regulations as they apply to private equity (PE) funds and contends that they each bring the PE industry within the purview of regulatory scrutiny in a way that may have negative implications for our economic recovery. While the need to be forward-looking remains present in any legislative scheme, this Note takes the position that we are currently facing uncertain economic times that require a response more closely tied to the conduct that led to the Crisis.

Measuring Fatherhood: “Consent Fathers” and Discrimination in Termination of Parental Rights Proceedings

Amanda S. Sen

In New York State, unmarried fathers have only tentative rights to parent their children. Unmarried fathers, unlike mothers and married fathers, must prove that they are “consent fathers”—that is, a father who pays child support and maintains contact with his children—before they are allowed to intervene in adoption proceedings. While this makes sense in a private adoption scenario, in which the interests and rights of the mother must be balanced against those of the father, and in which the State has a substantial interest in promoting already intact families, the same analysis should not be unthinkingly applied to termination of parental rights proceedings, as it is now. Unlike the private adoption scenario, a termination of parental rights proceeding involves very different interests on the part of the mother and the State as well as a completely different analysis of what may be best for children. I argue that unmarried fathers should be given the protections in termination of parental rights proceedings that are automatically afforded mothers because the law as it currently stands works against the State’s interest in promoting unified families and violates the Equal Protection Clause of the U.S. Constitution.

Reading the Early American Legal Profession: A Study of the First American Law Review

Zoey F. Orol

This Note seeks to demonstrate the ripeness of early American legal periodicals as a subject of further inquiry by reading the American Law Journal (1808–1817), the first American law review, as a reflection of the changing nature of the legal profession at a crucial time in American history. Close analysis of the content and editorial choices of the journal suggests that the journal both reflects and addresses three early nineteenth century professional needs: the need to practice in a variety of jurisdictions and areas of law; the need to give voice and content to the emerging idea of a professional self-consciousness, which some scholars suggest developed only later in the century; and the need to respond to the internationalization of American legal and political affairs, which undercuts the arguments of many legal historians that the period marked an increasing tendency in American jurisprudence to look inward. The few scholars who have attempted to paint a picture of legal affairs in this transformative period have typically focused on the dockets of particular jurisdictions while overlooking legal periodicals. However, such sources can more accurately portray the state of the national legal profession given that a journal editor, unconstrained by state or regional boundaries, can incorporate cases and sources from a wide range of jurisdictions and on a varied array of topics. Furthermore, the fact that periodicals are necessarily dependent on a subscriber base suggests that such editors had to touch on issues of interest to subscribers from all across the country in order to stay afloat.

Dangerousness on the Loose: Constitutional Limits to Immigration Detention as Domestic Crime Control

Frances M. Kreimer

The United States immigration detention regime that was reborn in the 1980s is not only unprecedented in scale, but also in rationale. Whereas immigration detention had historically been justified primarily as a means of ensuring immigration compliance, with a secondary purpose of protecting national security, today’s system increasingly functions in collaboration with criminal law enforcement systems to incapacitate allegedly dangerous individuals for the purpose of preventing potential domestic crime. Regardless of the validity of judicial deference when immigration detention truly serves to aid in the removal process, this Note argues that such deference cannot legitimately be extended to the newly ascendant crime control function of immigration detention. At minimum, Due Process requires immigration detention procedural safeguards that are parallel to those in other preventive detention contexts, in which the government bears the burden of individually demonstrating a need for confinement.

The Case Against the Tax Deductibility of FCA Relator Fees

Jonathan D. Grossman

The False Claims Act (FCA) imposes severe penalties on those who commit fraud against the federal government. The statute currently requires violators to pay treble damages plus a statutory penalty of five to ten thousand dollars per violation. The goal of the statute is to deter fraud by setting punitive damages at a high level. However, the tax law, as currently interpreted by the Internal Revenue Service (IRS), blunts the force of the statute by allowing a violator to deduct a portion of an FCA damages award as a business expense. Specifically, Treasury regulations allow for the deductibility of any portion of an FCA settlement or damages award that is paid to the whistleblower, known as the “relator,” who brings suit under the FCA for the alleged fraud. This Note argues that, for reasons of efficiency and equity, the IRS should change its current position and disallow relator fee deductions.

The Child Paradox in First Amendment Doctrine

Yotam Barkai

Courts have increasingly scaled back children’s First Amendment rights and deferred to schools’ fear of disruption; today, children face discipline for even off-campus expression. Meanwhile, in the name of others’ free speech rights, the Supreme Court has discounted the state’s claimed interest in children’s welfare and has repeatedly rejected restrictions on third parties’ abilities to approach children with sexually explicit, commercial, and violent speech. These dueling trends have created a paradox: Although First Amendment principles indicate that children’s ability to speak is more important than their access to others’ speech, the doctrine errs in the wrong direction and protects speech to children more strongly than it protects children’s own expression. Therefore, the Court should both allow for greater government restrictions on speech to children and more strongly protect children’s speech rights, especially outside school. This modified doctrine would be more sensitive to the government’s regulatory interest in children and to the principles behind the First Amendment.