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Articles 1 - 11 of 11
Full-Text Articles in Law
The Venue Shuffle: Forum Selection Clauses & Erisa, Christine P. Bartholomew, James A. Wooten
The Venue Shuffle: Forum Selection Clauses & Erisa, Christine P. Bartholomew, James A. Wooten
Journal Articles
Forum selection clauses are ubiquitous. Historically, the judiciary was hostile to contracts limiting a plaintiff’s venue options. The tide has since turned. Today, lower courts routinely enforce such clauses. This Article challenges this reflexive response in the special context of ERISA cases. It mines ERISA’s statutory text, rich legislative history, and historical context to supply an in-depth exploration of ERISA’s unique policy goal of providing employees “ready access to the Federal courts.” The Article then explains how forum selection clauses undermine this goal and thus should be invalid under controlling Supreme Court jurisprudence.
E-Notice, Christine P. Bartholomew
E-Notice, Christine P. Bartholomew
Journal Articles
Social media platforms and smartphone manufacturers face class action lawsuits, but how open are federal courts to using these very technologies to notify members of a class action? This Article details the results from an empirical analysis of over 2700 federal class notice decisions. It finds class notice changing, but very slowly. Supreme Court precedent demands a dynamic standard for class action notice. However, fears of change, technology, and imprecision keep courts tethered to twentieth-century modes of communication. This judicial fear encumbers E-Notice—at a cost to the utility of class action procedures.
The Failed Superiority Experiment, Christine P. Bartholomew
The Failed Superiority Experiment, Christine P. Bartholomew
Journal Articles
Federal law requires a class action be “superior to alternative methods for fairly and efficiently adjudicating the controversy.” This superiority requirement has gone unstudied, despite existing for half a century. This Article undertakes a comprehensive review of the superiority case law. It reveals a jurisprudence riddled with inconsistency as courts adopt diametrically opposed interpretations of the requirement. Originally crafted to encourage predictable, consistent class action decisions, superiority has mutated over the years into a dangerous wild card—subjectively used to stymie aggregate litigation. The solution is not adding a new requirement to the already onerous rules for class certification. Instead, judges …
Twiqbal In Context, Christine P. Bartholomew
Saving Charitable Settlements, Christine P. Bartholomew
Saving Charitable Settlements, Christine P. Bartholomew
Journal Articles
This Article defies the conventional wisdom that all charitable distributions from a class action settlement fund are types of cy pres. Instead, it proposes a radical delineation between “cy pres remainders” (meaning settlement funds left over after individual monetary distributions) and “charitable settlements” (meaning money initially distributed to charities as part of class action settlements). While both have cy pres roots, these two settlement structures have been conflated, jeopardizing the potential utility of charitable settlements. After articulating more precise nomenclature for these distinct distribution methods, this Article justifies why we must preserve charitable settlements. This defense is particularly timely, as …
The Story Of Prudential Standing, S. Todd Brown
The Story Of Prudential Standing, S. Todd Brown
Journal Articles
Prudential standing, it seems, is the latest target in the Roberts Court’s effort to “bring some discipline” to jurisdictional and pseudo-jurisdictional concepts. During the Court’s last two terms, it issued a unanimous opinion that excised the zone of interests test from prudential standing doctrine (Lexmark), two unanimous opinions that questioned federal courts’ prudential discretion to decline jurisdiction (Lexmark and Driehaus), and a bitterly divided opinion in which the classification of a standing principle as prudential or constitutional was decisive (Windsor). Moreover, in Lexmark, the Court suggested that the third party standing principle may not be properly classified as prudential standing …
Plaintiff Control And Domination In Multidistrict Mass Torts, S. Todd Brown
Plaintiff Control And Domination In Multidistrict Mass Torts, S. Todd Brown
Journal Articles
No abstract provided.
Constitutional Gaps In Bankruptcy, S. Todd Brown
Constitutional Gaps In Bankruptcy, S. Todd Brown
Journal Articles
Federal bankruptcy law incorporates a broad range of commercial and related matters that are otherwise left to the States under the Constitution, follows an efficiency-centered process model that may implicate due process, and relies upon a judicial structure that appears to be inconsistent with Article III. In spite of the crushing volume of bankruptcy cases and proceedings each year in which the resolution of one or more of these questions may be relevant, the Supreme Court has had few opportunities to tackle them directly. Indeed, after more than two centuries, the Court has provided precious few insights into the limits …
Non-Pecuniary Interests And The Injudicious Limits Of Appellate Standing In Bankruptcy, S. Todd Brown
Non-Pecuniary Interests And The Injudicious Limits Of Appellate Standing In Bankruptcy, S. Todd Brown
Journal Articles
Standing to appeal bankruptcy court orders today is limited to those with a pecuniary interest. This prudential limitation is based on the person aggrieved requirement of Section 39(c) of the Bankruptcy Act of 1898 - a requirement that was not included in the Bankruptcy Code. This article examines the extensive differences between the Act and the Code, the potential justifications for extending the pecuniary interest test in spite of the omission of the person aggrieved requirement, and the potential ramifications for parties and the integrity of the bankruptcy process. This analysis suggests that standing to appeal bankruptcy orders should be …
The Mandamus Power Of The United States Courts Of Appeals: A Complex And Confused Means Of Appellate Control, Robert S. Berger
The Mandamus Power Of The United States Courts Of Appeals: A Complex And Confused Means Of Appellate Control, Robert S. Berger
Journal Articles
No abstract provided.
Civil Procedure And Practice, Kenneth F. Joyce