Legal Theory Blog

Gautier on the Mutuality of Collateral Estoppel Doctrine in Georgia

Boris Gautier (Georgia State University, School of Law) has posted Reluctance or Apathy? Examining Georgia's Continued Adherence to a Strict Mutuality Issue Preclusion Doctrine (37 GA. ST. U. L. REV. __ (2020, Forthcoming)) on SSRN.  Here is the abstract:

The common law doctrine of issue preclusion, also known as collateral estoppel, prevents parties from re-litigating an issue in subsequent lawsuits if a prior judgment already conclusively decided the issue. Issue preclusion traditionally required strict mutuality of parties; the first and second lawsuits had to involve the exact same litigants. Although the majority of jurisdictions now allow nonmutual issue preclusion, Georgia continues to require "identity of parties." Despite recently reaffirming this requirement, the Georgia Supreme Court has not thoroughly analyzed the merits of the rule.

This paper examines the history and evolution of issue preclusion and the mutuality element, distinguishes offensive and defensive assertions of issue preclusion, reviews the current application of nonmutual preclusion in federal courts, compares Georgia mutuality law to the case law of other states, considers the policy arguments favoring and disfavoring strict mutuality, and explores why the Georgia Supreme Court has not addressed the nationwide trend towards allowing nonmutual issue preclusion. The paper argues for changing Georgia law to allow nonmutual defense issue preclusion in civil litigation and advises practitioners on practical avenues for achieving that goal.

A nice student note on a topic that perhaps only a civil procedure teacher (me) could love.

Killean on Legal Representation for Sexual Assault Complaints

Rachel Killean (Queen's University Belfast School of Law) has posted Legal Representation for Sexual Assault Complainants (Rachel Killean, Eithne Dowds and Anne-Marie McAlinden (eds), Sexual Violence on Trial (Routledge, 2021 Forthcoming)) on SSRN.  Here is the abstract:

Traditionally, the notion of a legal representative for sexual assault complainants has been dismissed within adversarial criminal justice systems. It has been argued that the two-sided contest between the prosecution and defence cannot accommodate a third party without violating the rights of the accused, and that the complainant’s interests can be adequately protected by the prosecutor or court judge. However, the past 30 years have seen a development in ‘victims’ rights’ which has seen several adversarial systems incorporate some form of representation. This chapter explores these developments, and the arguments for and against introducing legal representation for complainants. The chapter argues that an adversarial process does not pose an insurmountable barrier to legal representation, and that a carefully managed system of representation could do much to avoid the high risks of secondary victimisation for sexual assault complainants. The chapter outlines the recommendations made by Sir John Gillen in his review of sexual offence trials in Northern Ireland and considers whether such proposed reforms would sufficiently address the challenges faced by sexual offence complainants.

Harrington on Judicial Policy & the Gender-Motivated Violence Provision of VAWA

Christine B. Harrington (NYU) has posted 'Administrative 'States' of Judicial Policy on Gender-Motivated Violence' (chapter in The Legal Process and the Promise of Justice (eds., R. Greenspan, H. Aviram, and J. Simon). NY: Cambridge University Press, 230-258, 2019) on SSRN.  Here is the abstract:

The paper focuses on a decade-long battle (1990–2000) involving feminist lawyers/activists, members of Congress, and the federal courts over creating a civil right to be free from “gender-motivated violence,” as defined by the 1994 Violence Against Women Act (VAWA). It offers an interpretative sociolegal analysis of civil rights policymaking in a political time when judicial conservatism re-emerges (late twentieth century) and effectively competes for control over the administrative state, from the bench as well as off the bench.

In this political time, judicial conservatives mobilize “judicial administration” norms for the purpose of expanding the judiciary’s institutional role in shaping civil rights legislation. Conservative judges and Justices frame/reinterpret “gender-motivated violence” through a series of administrative justifications (e.g., caseload crisis, originalism). Rather than “weakening” the New Deal - Great Society administrative state, as much of the “judicial backlash” literature suggests, I argue that judicial administration resources, as deployed by the judicial branch, leveraged a historic challenge to the entrenched “comprehensive rational policymaking” regime that had structured much of U.S. civil rights policy through the 1960s and 1970s.

Steinman on Appellate Review of Civil Jury Verdicts

Adam Steinman (University of Alabama - School of Law) has posted Appellate Courts and Civil Juries on SSRN.  Here is the abstract:

In federal civil litigation, decisionmaking power is shared by juries, trial courts, and appellate courts. This article examines an unresolved tension in the different doctrines that allocate authority among these institutions, which has led to confusion regarding the relationship between appellate courts and civil juries. At base, the current uncertainty stems from a longstanding lack of clarity regarding the distinction between matters of law and matters of fact. The high-stakes Oracle-Google litigation - which is now before the Supreme Court - exemplifies this. In that case, the Federal Circuit reasoned that an appellate court may assert de novo review over a jury's verdict simply by characterizing a particular issue as legal rather than factual. But this approach misperceives the approach demanded by Rule 50 of the Federal Rules of Civil Procedure, which permits judicial override of a jury's verdict only when "a reasonable jury would not have a legally sufficient evidentiary basis" to reach such a verdict.

Rule 50's reasonable-jury standard does not permit de novo review of a jury's verdict on a particular issue. Rather, it requires deference to the jury's conclusion on that issue unless the reviewing court can explain why principles of substantive law or other aspects of the trial record render that verdict unreasonable. This deferential standard of review faithfully implements the text and structure of the Federal Rules and respects the jury's role in our federal system. Yet it also preserves appellate courts' ability to provide meaningful clarification that will guide future decisionmakers.

Highly recommended.

Spitzer on the Health Exception & Abortion Jurisprudence

Elyssa Spitzer (Harvard University - Harvard Law School) has posted Pregnancy's Risks and the Health Exception in Abortion Jurisprudence (Georgetown Journal of Gender and the Law, Forthcoming) on SSRN.  Here is the abstract:

Current abortion jurisprudence provides logically sufficient grounds for universal access.

Under the health exception, abortion-regulating legislation must explicitly permit abortion access when a pregnancy threatens a pregnant person’s health. This article argues that, given the universal risks of pregnancy and birth, the reasoning of the health exception supports abortion access for all pregnancies, pre-and post-viability.

Though the Court has presumed risks in pregnancy to be rarities, contemporary medical research into pregnancy and birth make clear how sweepingly common, unpredictable, severe, and multiple health risks remain. Since 1999, maternal mortality and morbidity rates – both persistently worse for people of color – have been increasing. Combing the legal standard and medical research, this article demonstrates that according to the logic of the health exception, abortion should be permitted in all circumstances, as each pregnancy and birth poses a threat to the pregnant person’s health.

This logical consequence has implications for abortion access. If the health exception were given the effect this article argues both jurisprudence and medical research mandate, abortion should be available whenever sought, viability-defining legislation notwithstanding.

De Barbieri on Opportunity Zones

Edward W. De Barbieri (Albany Law School) has posted Opportunism Zones (Yale Law & Policy Review, Vol. 39 (Forthcoming)) on SSRN.  Here is the abstract:

In 2017, Congress adopted the Opportunity Zone, an unheralded yet powerful place-based economic development tool, as part of tax re-form. Place-based economic development tools and strategies provide incentives to attract jobs and capital to areas where jobs and capital have fled. Investors in state-designated Opportunity Zone districts are able to (1) defer capital gains on qualified investments, and (2) reduce their tax bills when selling qualifying real estate or business property. Proponents of the bipartisan Opportunity Zone argue that tax incentives are an efficient way to direct investment dollars to poor areas. Critics, however, point out that such government interventions in the economy are stricken by corruption, abuse, and waste.

This Article analyzes and critiques the Opportunity Zone, and argues that compared to other place-based economic development tools implemented through law it is an extreme and potentially frightening approach. I identify three key aspects—use, transparency, and participation—which focus my analysis on the extent to which Opportunity Zones may in fact harm the areas they are supposed to benefit. There are prudent reasons to be skeptical of the benefits of the Opportunity Zone, especially considering their potential to widen and increase wealth and in-come inequality.

I argue that place-based economic development strategies are not necessarily to blame. Rather, it is the Opportunity Zone, a tool to benefit investors and existing landowners, that needs reform, or elimination. I explore proposals to restructure the Opportunity Zone that limit the uses of invested funds, improve transparency to assess meaningful outcomes, and involve stakeholder groups through participation.

Victor on Fair Use & Utility-Expanding Technologies

Jacob Victor (Albany Law School; Yale Information Society Project; NYU School of Law) has posted Utility-Expanding Fair Use (105 Minnesota Law Review, Forthcoming) on SSRN.  Here is the abstract:

Copyright’s fair use doctrine is increasingly applied to large-scale uses of entire copyrighted works by new digital technologies, such as the Google Books Project. Such technologies — which the Second Circuit recently called “utility-expanding” — aid the public in more efficiently accessing and/or productively using existing copyrighted content. This is new terrain for the fair use doctrine, which has most commonly been applied to the use of a work in the service of new creative expression.

This Article examines the relationship between utility-expanding technologies and fair use. Even though utility-expanding technologies often serve copyright’s policy agenda by enhancing public enjoyment of creative works, these uses sometimes fit uneasily into the requirements of fair use since they can provide a market substitute that harms the copyright owner financially. Providing free use for such technologies can undermine copyright’s overarching goal of providing creators with financial incentives to produce new works. Reflecting this tension, some recent cases have found that a utility-expanding technology was “transformative” and of benefit to the public but not fair use because of market harm to the copyright owner.

The Article argues that fair use provides an increasingly unwieldy framework for making sense of the full range of utility-expanding technologies, both doctrinally and normatively. In fact, utility-expanding fair use cases have begun to venture into territory traditionally occupied by a different copyright limitation: compulsory licensing. Congress, in the past, developed compulsory licensing systems for certain technologies that benefit the public by increasing the availability and accessibility of copyrighted works but posed some risk of market substitution. In particular, the creation of the compulsory license for digital radio in the mid-1990s provides useful insight into the relationship between utility-expanding technologies and copyright’s policy agenda. Rather than providing no compensation to copyright owners (as fair use does) or a full market-based price (as is the norm in copyright licensing markets) this regime used policy-oriented price-setting criteria designed to identify royalty rates that would allow digital radio to flourish but still ensure that creators received a financial incentivize to produce works. This parallel suggests that a compulsory licensing regime, governed by policy-focused rate-setting standards, would be a useful middle-ground solution for utility-expanding technologies that do not warrant a fair use finding. The Article identifies some ways such a compulsory licensing approach could be implemented within copyright’s current remedies regime. Furthermore, even just the prospect of a compulsory license might galvanize private licensing between rights-holders and utility-expanding technology companies, mitigating some of the inefficiencies posed by judicial price setting.

Brescia on Political Privacy & Private Law

Raymond H. Brescia (Albany Law School) has posted Privacy's 'Three Mile Island' and the Need to Protect Political Privacy in Private Law Contexts (Florida State University Law Review, Vol. 48 (Forthcoming)) on SSRN.  Here is the abstract:

When it was revealed that Cambridge Analytica obtained the personal and private information of eighty-seven million Facebook users to aid the U.S. presidential campaign of Donald J. Trump, it was described as privacy’s “Three Mile Island”: an event, like the famed nuclear accident from which the term comes, that would shake and shape an industry and its approach to digital privacy and the underlying political information such privacy protects. In the intervening three years, with another presidential election looming in the United States, and despite these revelations, little has changed in terms of protecting the type of private information essential to the functioning of democracies. But what the Cambridge Analytica scandal also made clear is that threats to private information revealed and embedded in our digital activities threaten democracy. What is more, these threats risk undermining individual identity and autonomy and the ability of individuals to pursue individual and collective self-determination. An individual’s political identity—who she associated with, what she says, what she thinks, the questions and ideas she explores, for whom she votes—is all caught up in notions of political privacy. While current public-law protections are fairly robust when it comes to protecting political privacy, even as some fear that current responses to the pandemic may require a degree of intrusion upon privacy by government, the threats to privacy that have emerged in the digital age preceded the current public health crisis and emanate mostly from private actors, where protections for political privacy are quite weak. Nevertheless, democracy requires a high degree of protection for individual identity and political privacy, regardless of the source of the threat, especially when the lines between private action and public effects are blurred, as in the Cambridge Analytica scandal. Given the importance of the integrity of identity to democracy, and the fact that many of the threats to political privacy emanate from private actors, as this Article shows, enhanced protections for this political privacy are also necessary in the private law context. Calls for greater protection of digital privacy often result in recommendations that a single institution—the market, political bodies, or the courts—should take a greater role in policing online privacy. Yet these institutions are often interdependent when it comes to protecting digital privacy, and, by extension, political privacy. Efforts promoted through one institution can often have positive—and negative—spillover effects on the functioning of other institutions: they can at times strengthen the protections of such privacy in other institutional settings, or undermine the ability of those other institutions to function effectively to protect political privacy. So which institution or set of institutions is best suited to protect such political privacy? This question calls for the application of the method known as comparative institutional analysis, which assesses the relative strengths and weaknesses of different institutions in achieving desired policy goals. At the same time, as this discussion will reveal, even comparative institutional analysis, if it does not take into account the extent to which different institutional settings can have spillover effects on the ability of other institutions to achieve particular policy goals, fails to offer sufficient tools for the assessment of the best institution or institutions to achieve such goals. Indeed, as this Article attempts to show, at least when it comes to protecting political privacy in private-law contexts, any effective institutional response to the threats to political privacy will likely require not just an appreciation for the ways in which different institutional settings are interdependent when it comes to achieving that goal, but also that any such effort will require an integrated and comprehensive approach that spans different institutional settings. In the end, this Article is an attempt to use the tools of comparative institutional analysis to assess the relative abilities of different institutions to protect political privacy, including an assessment of the litigation that has arisen in the wake of the Cambridge Analytica scandal, to determine the role of different institutions in protecting political privacy in private law—as opposed to public law—settings. Through a review of this and other litigation to protect digital privacy, which, more and more, affects political privacy, I will show not just how different institutional settings can strengthen the functioning of other settings, but also how they can undermine such settings. Thus, given the fact that institutions that protect political privacy can often work at cross-purposes in policing political privacy, this Article argues for the need for comprehensive, integrated, and cooperative action across institutions to ensure the proper protection of this type of privacy.

Nelson Tips, Commissions, & Pay Disparity

Ryan H. Nelson (Harvard Law School Project on Disability) has posted Substantive Pay Equality: Tips, Commissions, and How to Remedy the Pay Disparities They Inflict on SSRN.  Here is the abstract:

Empirical evidence demonstrates that racial and ethnic minorities tend to earn less in tips than their white coworkers and racial and ethnic minorities and women tend to earn less in commissions than their white, male coworkers. Moreover, a growing body of research suggests that neither tipping nor commissions are always a business necessity. However, neither courts nor litigants have recognized a disparate impact cause of action under Title VII of the Civil Rights Act of 1964 alleging that customer preference-based pay schemes like tipping and commissions cause employees to earn less because of their race or sex and cannot be justified as job related and consistent with business necessity.

This Article articulates a novel litigation strategy for combating pay disparities wrought by tipping and commissions. First, it explains why the overwhelming majority of tipping and commission schemes that cause race- or sex-based pay disparities evidence a prima facie case of disparate impact under Title VII notwithstanding the commonly-held beliefs that Wal-Mart Stores, Inc. v. Dukes forecloses disparate impact review of policies that afford discretion over pay and cases like AFSCME v. Washington foreclose disparate impact scrutiny of policies that set pay based on multiple, complex factors (e.g., market forces, customer preferences). Second, because of a circuit split in defining the business necessity defense, this Article argues that employers in some jurisdictions would be unable to carry their burden of proving that tipping and commission schemes are a literal business necessity, as arguably required under Title VII by the Civil Rights Act of 1991. Third, this Article contends that Title VII’s defenses to disparate impact caused by merit systems or production-based earnings systems do not apply to tipping and commission schemes as they exist today because such schemes do not materially reflect employees’ merit or measure earnings based on the production of tangible things.

Finally, this Article presents original, non-litigation alternatives to attacking such pay disparities. Most notably, it reconceptualizes Ricci v. DeStefano — an opinion regarded in much scholarship as a material roadblock to substantive workplace equality — as offering employers the option of ensuring substantive pay equality by offsetting race- or sex-based disparities in tips or commissions via disparate treatment (i.e., affirmative action). For instance, this Article contends that employers do not violate Title VII by offering pay or preferential treatment to racial and ethnic minorities who earn less in tips than their white coworkers because of race (e.g., more-desirable shifts or customers) as a “Ricci offset” to cure the disparate impact that the employer caused in the first place.

For generations, employers have maintained tipping and commissions as facially-neutral, customer preference-based pay schemes which afford employees formal pay equality, but fail to guarantee pay untethered to customers’ racist and sexist preferences. This Article provides a litigation road-map and non-litigation alternatives to employees subjugated and discriminated against by such pay schemes. In doing so, it lays the groundwork for those employees to secure not just facially-neutral pay policies, but substantive pay equality.

Gluck & Turret on Affordable Care Act Litigation

Abbe R. Gluck (Yale University - Law School) & Erica Turret have posted The Affordable Care Act's Litigation Decade (Georgetown Law Journal, Vol. 108, No. 6, 2020) on SSRN.  Here is the abstract:

The ACA is the most challenged statute in American history. The first constitutional challenges were filed moments after the law was enacted. Ten years later, the ACA is still under attack, with a collective total of seven Supreme Court challenges in a decade. Along the way, the statute has been rebelled against by the states charged with implementing it, sabotaged by the second President to administer it, and financially starved by Congress. All of these events have fed a swirl of litigation and made for a story of unprecedented statutory resilience.

Everything about the ACA litigation—the stakes, the political and media attention, and even the number of hours of oral argument granted by the Supreme Court—has been outsized. The breadth of the more than 2,000 legal challenges has been staggering. The litigation reveals the extensive reach of the ACA into all areas of our economy and its effects far beyond healthcare. It shows the legal complexity of a federal law that does not rely solely on the federal government to administer it but relies on states and private actors as well. And it underscores the political and practical challenges of government intervention that aims to affect not only individual behavior but also private relationships, including those between employers and employees, and between patients and healthcare providers.

As the most significant healthcare legislation in recent American history, the ACA’s cases have, of course, shaped American healthcare. But they also have shaped constitutional law, federalism, statutory interpretation, administrative law, and our conceptualizations of the rights and duties of states and private actors charged with implementing federal statutes. The legal challenges also underscore deep and longstanding philosophical tensions within American healthcare itself. The norms of solidarity and community— that everyone should contribute so everyone can receive good healthcare—have long stood in counterpoise to the libertarian and market-based position that one gets only the healthcare one can pay for. Many of the challenges are, at bottom, about this normative tension.

And yet, litigation has transformed the ACA and the public’s understanding of it and its goals. Whereas the ACA came into the world as an uneasy political compromise between solidarity and market norms that frustrated some reformers wishing to see more, it has emerged from a decade of litigation much more closely aligned with the norms of solidarity and universal coverage than it was in 2010.

This Article documents in one place, for the first time, the sheer breadth and volume of the decade of litigation about the ACA, covering the period from the day the law was enacted, March 23, 2010, until April 2020. The relentless and multipronged legal attacks on the ACA, and the ACA’s survival and transformation through and in large part because of them, are an important part of the history of not only the ACA but the law of the decade itself.

Highly recommended.