Civil Procedure


Unintended Side Effects: Arbitration and the Deterrence of Medical Error

David Shieh

As many as 98,000 people die each year as a result of medical error. According to law and economics scholars, the solution to this problem is straightforward: When calibrated correctly, medical malpractice liability will force healthcare providers to internalize the cost of their negligence, incentivizing improvements to patient safety that will reduce medical error. Debate has raged for decades over the coherence of deterrence theory, but little attention has been paid to the erosion of one of its bedrock assumptions: that the procedural mechanism through which claims are to be resolved is litigation. Arbitration has become pervasive in the healthcare context, but its effects on medical malpractice liability’s ability to deter medical error have been largely overlooked by public health and legal scholars. This Note argues that the adoption of arbitration will not, as law and economics scholars assume, improve the medical malpractice regime’s ability to deter error. In addition to drawing on existing law and economics and public health scholarship to advance this descriptive claim, this Note studies the experience of Kaiser Permanente, the nation’s largest integrated healthcare consortium, in using arbitration to resolve medical malpractice disputes with its seven million members in California.

44.1 Luftballons: The Communication Breakdown of Foreign Law in the Federal Courts

Matthew J. Ahn

Foreign law has become an increasingly important element of many cases brought before federal courts. Rule 44.1, which controls determinations of foreign law, is intended to make the process for determining foreign law as painless as possible, but like the regime that preceded it, it has become a procedural minefield for those wishing to rely on foreign law, as courts have declined to apply Rule 44.1 when it should be used, either deliberately or due to uncertainty as to its application. This is in large part due to the lack of concrete standards outlined in the rule. This Note examines the standards associated with the rule and their application in the years immediately after its promulgation and concludes that the reliant party’s burden of production with respect to foreign law should vary based on whether statutory text is provided. If a statute is available, the courts should be required to undertake a Rule 44.1 analysis, while if a statute is unavailable, the reliant party should bear the burden of producing substantial evidence of foreign law. This standard, elaborated in the text of Rule 44.1, should ensure that as many foreign law determinations as possible can be resolved on the merits.

“Not of Any Particular State”: J. McIntyre Machinery, Ltd. v. Nicastro and Nonspecific Purposeful Availment

Robert M. Pollack

The Supreme Court recently revisited the doctrine of specific personal jurisdiction for the first time in decades in J. McIntyre Machinery, Ltd. v. Nicastro, which resulted in a fractured opinion, a flurry of critical scholarship, and uncertainty on the lower courts. This Note argues that the principal significance of Nicastro lies in the sensitivity of the Breyer concurrence to the problems modernity poses for jurisdictional doctrine and its concomitant willingness to reevaluate the doctrine. Lower courts and litigants should see the case as an invitation to address such “modern concerns” in jurisdictional analysis within the bounds implied by Justice Breyer. This Note proposes that the jurisdictional problem of an interconnected globalized economy is the same as that posed by the Internet—the novel and increasingly pervasive fact of nonspecific purposeful availment of transjurisdictional contacts—and that such contemporary circumstances necessarily erode the utility of minimum contacts analysis as a consistent and fair limitation on personal jurisdiction, such that a more robust implementation of fairness balancing must become the engine of the doctrine.

Second-Order Choice of Law in Bankruptcy

Ankur Mandhania

This Note attempts to answer the question of which choice-of-law regime ought to apply to bankruptcy cases. Taking the facts of a recent Second Circuit case as my example, I argue that Congress should amend the Bankruptcy Code to include a blackletter second-order choice-of-law section for use in all bankruptcy cases. First, Part I examines the state of Second Circuit jurisprudence on the question before this case, probing the reasoning and basic justifications for the resulting rule. Second, Part II establishes a normative framework, drawing on both bankruptcy and choice-of-law theory, for evaluating any proposed answer to this dilemma. I show here that the Second Circuit solution does not meet this framework and thus must be discarded. Third, Part III articulates my proposed solution, showing that it is most consistent with this framework.

Designing Related-To Bankruptcy Jurisdiction

Jack Zarin-Rosenfeld

This Note offers a framework for analyzing related-to bankruptcy jurisdiction under 28 U.S.C. § 1334 that courts can implement immediately within the bounds of the statute and case law. It argues that that the current requirements for related-to jurisdiction should be better deployed in accordance with the relative merits of jurisdictional rules and standards, and proposes a broad threshold inquiry back-stopped by a robust abstention doctrine, which will allow courts to both define bright-line boundaries where possible and fulfill the policy objectives of bankruptcy jurisdiction on a case-by-case basis.

Pennoyer’s Ghost

Kevin D. Benish

Consent, Registration Statutes, and General Jurisdiction After Daimler AG v. Bauman

This Note evaluates general personal jurisdiction based on a “consent-by-registration” theory, arguing that this old basis of jurisdiction is unconstitutional after Daimler AG v. Bauman. Daimler overturned nearly seventy years of law on general jurisdiction, and in doing so provoked the return to a basis of jurisdiction dating back to Pennoyer v. Neff, with plaintiffs arguing that foreign corporations “consent” to general jurisdiction when they register to do business in states outside their place of incorporation or principal place of business. But Pennoyer is dead. Thus, the question is whether Pennoyer‘s ghost provides a constitutional basis for general jurisdiction, even after Daimler‘s severe limitations of it.


Alexandra Bursak

Preclusion law is notoriously convoluted. Courts have made no secret of their distaste for the doctrine, describing it variously as “conflicting,” “inconsistent,” “breeding confusion,” and ultimately “not very well liked.” Though the Supreme Court has consolidated issue and claim preclusion into a single coherent whole, this Note argues that the merger of res judicata and collateral estoppel in our modern preclusion law is incomplete. These different preclusions are motivated by different rationales: Res judicata protects private closure of parties, while estoppel began as a defense of judicial interests and expanded to forward systemic ones. Though private and systemic interests may often align, this alignment is not inevitable. In the case of public rights, failure to keep these doctrines distinct has undermined judicial ability to offer closure. Attention to the differences in historic preclusion doctrines ultimately provides a direction for modernization in the form of intervention.

Structuring a Legal Claims Market to Optimize Deterrence

Jack L. Millman

Jurisdictions have been liberalizing rules surrounding third-party litigation funding or the buying and selling of legal claims since the early twentieth century. Scholars have generally supported liberalization, seeing it as a way to expand access to courts and allow for the more efficient allocation of risk. Opponents have warned about a surge in frivolous litigation and strategic behavior by funders. But both sides have ignored how interrelated the rules governing third-party investment in litigation and the alienability of legal claims are, and how they interact to affect a legal claims market. The focus on reform should be to adjust these rules to create the optimal legal claims market. Instead, reform has increasingly focused on liberalizing third-party investment while keeping rules around alienability the same, or even barring investors from exercising control over the suit. This risks creating new problems without effectively solving many of the issues reform is meant to solve. This incremental approach comes with real costs, and may actually prevent a well-developed legal claims market from developing.

Recognition and Enforcement of Foreign Judgments and Awards: What Hath Daimler Wrought?

Linda J. Silberman, Aaron D. Simowitz

In Daimler AG v. Bauman, the Supreme Court confirmed what it had only hinted at previously—that general jurisdiction over a corporation is limited only to a state which can be regarded as its “home.” In doing so, the Court brought the United States closer to the rest of the world in its approach to general jurisdiction. What may have been overlooked, however, is the impact of Daimler on actions brought to recognize and enforce foreign country judgments and foreign arbitral awards if the Daimler standard is applied in that context. Some courts have already done so. Professors Silberman and Simowitz offer an overview of the present jurisdictional regimes for recognition and enforcement actions with respect to both foreign judgments and arbitral awards. Their own analysis concludes that a jurisdictional nexus should be required for recognition and enforcement but that the context of recognition and enforcement presents unique differences from a plenary action. Thus, they argue that Daimler needs to be tailored to fit such actions. Professors Silberman and Simowitz also examine various alternative bases of jurisdiction—property-based jurisdiction, specific jurisdiction, and consent—that may be pressed into service if Daimler is extended to recognition and enforcement actions, and find both promise as well as limits in those alternatives.

Final Agency Action in the Administrative Procedure Act

Stephen Hylas

Under section 704 of the Administrative Procedure Act, courts can only review agency actions when they are “final.” In Bennett v. Spear, the Supreme Court put forth a seemingly simple two-part test for assessing final agency action. However, the second prong of that test—which requires agency actions to “create rights or obligations from which legal consequences flow” to be final—poses several problems. Most importantly, because it overlaps with the legal tests for whether a rule is a legislative rule or a nonbinding guidance document, it seems to effectively bar courts from reviewing nonlegislative rules before agencies have taken enforcement action. Because of this overlap, the Bennett test conflicts with—and thus undercuts—other principles of administrative law that seem to promote a pragmatic, flexible approach for courts to use in determining whether, when, and how to review agency rules. The result is a confusing standard of review that can prevent plaintiffs from challenging agency rules in court, especially when those plaintiffs are beneficiaries of regulation who will never be subject to enforcement action down the road. At the same time, however, courts should not be able to review every single agency rule before it is enforced. Agencies should be able to experiment, but should not be permitted to indefinitely shield potentially dangerous deregulatory programs from judicial review, as Bennett seems to allow. Accordingly, this Note argues that to be faithful to the Court’s commitment to “pragmatic” interpretation of the finality requirement, lower courts should follow a two-pronged approach to analyzing questions of final agency action. When courts can compel an agency to finalize its allegedly temporary action because of “unreasonable delay,” they should interpret Bennett’s second prong formally, holding that only truly legally binding action can be final. If this bars some plaintiffs from suing now, they will be able to challenge the rule later when the agency’s process is finished. But when courts cannot force agencies to finalize their rules, they should construe Bennett functionally, conceptualizing the agency’s allegedly temporary action under a “practically binding” standard. Under this framework, if the agency’s “temporary” action in practice consistently follows certain criteria, it should be viewed as binding and final under Bennett, and thus subject to judicial review, regardless of what the agency or its employees are legally required to do. This two-pronged approach would help to strike the right balance between the private party and the agency in a practical manner that depends upon the context.