Donald G. Gifford
Edward M. Robertson Research Professor of Law
University of Maryland Carey School of Law

William L. Reynolds
Jacob A. France Professor of Judicial Process
University of Maryland Carey School of Law

Andrew M. Murad
Associate
Arent Fox LLP 

Abstract

This Article uses the Supreme Court’s 2011 decision in Bruesewitz v. Wyeth to examine the textualist or “plain meaning” approach to statutory interpretation.  For more than a quarter-century, Justice Scalia has successfully promoted textualism, usually associated with conservatism, among his colleagues. In Bruesewitz, Scalia, writing for the majority, and his liberal colleague Justice Sotomayer, in dissent, both employed textualism to determine if the plaintiffs, whose child was allegedly harmed by a vaccine, could pursue common law tort claims or whether their remedies were limited to those available under the no-fault compensation system established by the National Childhood Vaccine Injury Act.  Despite these Justices’ common approach to statutory interpretation, they reached diametrically opposite conclusions in opinions that dissected the statutory language and quarreled over the meaning of “even though” and “if” clauses.  In contrast, Justice Breyer employed a purposive or “purposes and objectives” approach to statutory interpretation.  Rather than obsessing over the meaning of each and every phrase, Breyer looked at Congress’s goals in passing the Act.  He recognized that Scalia’s conclusion was correct, not because of the supposedly “plain” meaning of specific language, but because this interpretation was the only one that enabled the alternative compensation system to function as Congress envisioned.  Other scholars have analyzed Bruesewitz as a preemption case, but despite statutory interpretation’s inherently decisive role in express preemption cases, this is the first Article to highlight Bruesewitz as an illustration of the emptiness of textualism.

Richard A. Booth
Martin G. McGuinn Chair in Business Law & Professor of Law
Villanova University School of Law

Abstract 

Most legal scholars agree that securities fraud class actions do little to compensate investors.  Most investors are well diversified and, thus, are just as likely to sell an overpriced stock as to buy one.  Moreover, since the defendant company ultimately pays in a successful class action, holders effectively pay buyers.  Although this circularity is widely recognized, few have noted that because of the anticipated payout, the prospect of a class action causes stock price to decline by more than it otherwise would, thus generating additional (feedback) loss for both buyers and holders.  In this Article, I describe a method by which one can measure the net effect of class actions on fund investors who are both buyers and holders of a fraud-affected stock.  Since an index fund almost always holds more shares than it buys during the fraud period, an index fund almost always loses more than it gains.  Thus, class actions systematically penalize rational index fund investors for the benefit of irrational and undiversified stock-picking investors.  Accordingly, index funds should oppose class actions as contrary to the best interest of investors.  To be sure, one possible problem is that in the absence of the deterrent effect of class actions, there might be more securities fraud.  The answer is that whenever there is a meritorious class claim, the corporation itself will also have a claim–against the individual wrongdoers–for any increase in cost of capital resulting from reputational harm and any direct expenses relating to enforcement proceedings.  In a class action, these elements of loss are imbedded in the price decrease that occurs when the fraud is discovered.  But these losses are in fact suffered by the corporation and should be the subject of a derivative action for the benefit of the corporation–and thus all of the stockholders–not a class action for the benefit only of those who bought during the fraud period.  Although the corporation claim may be smaller than the class claim in the aggregate, it is likely to be quite substantial from the point of view of individual wrongdoers and, thus, to constitute a significant deterrent to fraud.  Happily, the rules of civil procedure provide a clear fix for the problem.  First, the law is clear that a claim that can be handled as a derivative claim must be handled as a derivative claim and that a derivative claim must be resolved first before any class claim may be addressed.  Second, no class action may proceed unless the court certifies it as a proper class action.  And no action may be so certified if there is any other equally good way to litigate the issues (as by means of a derivative action).  But someone has to make the argument.  It is puzzling that no one has done so, especially because derivative actions eliminate feedback losses and serve to restore stock price.  There are several possible explanations.  One is that insurance does not cover derivative claims as it does class claims.  Another is that attorney fees are likely to be higher in class actions than in derivative actions.  These factors may incline plaintiffs’ lawyers to favor class actions even though investors would be better served by derivative actions.  On the other hand, until now, no one has quantified the costs and benefits of class actions for real world investors.  As shown here, index funds almost always lose more than they gain and, thus, should oppose class actions in favor of derivative actions.  Indeed, index funds owe a duty to their investors to do so.

Michael Z. Green
Professor of Law
Texas Wesleyan University School of Law

Abstract

Recent attorney-client privilege cases offer a modern understanding of reasonable expectations of employee privacy in the digital age.  Employees have increasingly made electronic mail communications to their attorneys via employer-provided computers or other digital devices with an expectation of privacy and confidentiality.  Historically, courts have summarily dispensed with these matters by finding that an employer’s policy establishing clear ownership of any communications made through employer-provided devices eliminates any employee expectation of privacy in the communications and waives any viable privacy challenges to employer review of those communications.  Nevertheless, within the last couple of years, several cases involving employee assertions of attorney-client privilege protection in emails sent on employer-provided devices suggest new thoughts about reasonable workplace privacy expectations.

As employees must communicate through employer-provided digital devices day and night, these attorney-client privilege cases help expose the fallacy of assuming employees cannot reasonably expect that emails will remain private if employer policies mandate that the communications are not private.  These new cases and related ethics opinions about privileged email offer a modern lens through which one may now view employee privacy expectations under a new paradigm that replaces the façade of assuming employees have no expectation of privacy due to employer policies.

Digital age expectations regarding employee use of smart cellular phones, portable laptops, and other employer-provided devices to make communications beyond standard work hours leave little expectation or opportunity for employees to reasonably communicate privately and confidentially by any other means than through these employer-provided devices.  As a result, this Article asserts that employer efforts to mine their devices for employee emails after disputes ensue comprises a form of electronic dumpster diving that should not be tolerated by courts, legislatures, or attorney ethics committees.

Scott R. Grubman
Assistant United States Attorney 

Abstract 

In Gilbert v. United States, a majority of the Eleventh Circuit Court of Appeals held that the savings clause contained in Section 2255 of the Antiterrorism and Effective Death Penalty Act does not authorize a federal prisoner to bring in a habeas petition a claim, which would otherwise be barred by the AEDPA’s ban on second or successive motions, that the sentencing guidelines were misapplied in a way that resulted in a longer sentence not exceeding the statutory maximum.  The majority focused on finality interests, and worried that allowing a prisoner to avoid the AEDPA’s ban on second or successive motions would lead to abuse and delay.  Some, including the Gilbert dissenters, have expressed concerns that denying a prisoner relief where a retroactively applicable subsequent change in the law renders that prisoner’s sentence incorrect or invalid could result in constitutional violations.  This Article attempts to get past the rhetoric from both sides of the debate and proposes a middle ground approach that would pacify both the administrative and constitutional concerns that have been raised.

Wayne M. Gazur
Professor of Law
University of Colorado Law School

Abstract

With little fanfare, the 2008 amendments to the Uniform Probate Code (UPC) adopted the reformation of wills, as well as other kindred donative instruments, on account of mistake.  This Essay focuses on the reformation of wills and the impact that this little-heralded provision may carry.

While the introduction of reformation to the UPC is largely an improvement, it raises a number of concerns.  This Essay proposes that reformation of wills is not only doctrinally distinct from the interpretation of simply ambiguous wills, but also is a more troubling measure that has the potential to create more, possibly unfounded, will contests.  Further, while the closely related doctrine governing the interpretation of ambiguous wills needs to be clarified and made uniform by the UPC, the new reformation measure fails to accomplish that.

The Essay first briefly discusses the plain meaning rule and its role in addressing ambiguities in instruments and their reformation.  It then discusses the origins and operation of the new UPC reformation rule, weighs the impact of that change in the overall context of the UPC, and proposes a clarification to address the longstanding, but unevenly applied, doctrine of ambiguity.  The Essay further proposes clear limits on the role of juries in reformation proceedings.  It concludes by recommending safeguards that might be desirable for some testators to avoid unforeseen complications from reformation.

Richard T. Karcher
Professor of Law
Florida Coastal School of Law 

Abstract 

This Essay addresses the difficulty of proving financial harm that results when a head coach departs during the contract term and the school thereby abruptly loses a valuable asset, that being a successful and stabile athletic program.  Due to the unique and specialized nature of head coaches’ services and the industry they work in, ordinary measures for assessing damage based on substitute performance and transaction costs are insufficient.  The author offers a theory of measuring a school’s damages within the construct of a lost income-producing asset valuation, using a methodology based on liquidated damage amounts in comparable coaches’ contracts.

Richard Moberly
Associate Dean for Faculty & Professor of Law
University of Nebraska College of Law

Abstract

Whistleblower advocates and academics greeted the enactment of the Sarbanes-Oxley Act’s whistleblower provisions in 2002 with great acclaim. The Act appeared to provide the strongest encouragement and broadest protections then available for private-sector whistleblowers. It influenced whistleblower law by unleashing a decade of expansive legal protection and formal encouragement for whistleblowers, perhaps indicating societal acceptance of whistleblowers as part of its law enforcement strategy. Despite these successes, however, Sarbanes-Oxley’s greatest lesson derives from its two most prominent failings. First, over the last the decade, the Act simply did not protect whistleblowers who suffered retaliation. Second, despite the massive increase in legal protection available to them, whistleblowers did not play a significant role in uncovering the financial crisis that led to the Great Recession at the end of the decade. These related failures indicate that although whistleblowers had stronger and more prevalent protection than ever before, they had less reason to believe such protection works. This Article examines the developments in whistleblower law during the last decade and concludes that Sarbanes-Oxley’s most important lesson is that the usual approach to whistleblowing may not be sufficient. Encouragingly, the Article also evaluates recent developments in light of Sarbanes-Oxley’s successes and failures to demonstrate that policy makers may have learned from the Sarbanes-Oxley experience. During the last two years, regulators and legislators implemented new strategies that may encourage employees to blow the whistle more effectively.

Brent Evan Newton
Deputy Staff Director, United States Sentencing Commission
Adjunct Professor of Law, Georgetown University Law Center & Georgetown University School of Medicine
Adjunct Professor of Law, American University Washington College of Law
Adjunct Professor of Political Science & Criminology, University of Maryland

Abstract

Knowledgeable and respected authorities inside and outside the legal academy are correctly describing the American system of legal education as being in a state of “crisis” and in need of dramatic reforms. Yet most members of the legal academy refuse to accept that major structural reforms are necessary. Despite the academy’s intransigence, I feel compelled to nail my 95 theses to the academy’s door in the hope of hastening, however slightly, its glacial movement towards meaningful reform. The theses comprise six major themes, the first five concerning the legal academy and the sixth concerning the legal profession itself: (1) defects in the law school admissions process; (2) structural problems resulting from the excessive number of law schools, the ABA accreditation process, the current manner of law school faculty governance, and the current system of ranking law schools; (3) defects in law schools’ curricula, pedagogical methods, and assessments of students; (4) deficiencies in the professoriate at law schools; (5) problems related to legal scholarship and law reviews; and (6) flaws in the bar exam and licensure process and also in the process of graduates’ transition from law school to the job market. Most of the problems are interrelated and result in a negative synergy that increasingly threatens the health of the legal profession. As a result, the only way to effect meaningful change likely to persist is to implement systemic reform—root to branch.

Every major decision made by a law school should reflect a genuine fiduciary commitment to their students—with the ultimate goal of producing graduates who will be competent, ethical entry-level attorneys, that is, graduates who are “practice ready.” They should hire faculty members; design curricula and pedagogies; and admit and assess students with the primary goal of producing attorneys who can hit the ground running upon graduation. Law professors should make legal scholarship secondary to their teaching duties, and their scholarship should be relevant to the bench, bar, and legal policy-makers. Law schools also need to charge a fair amount of tuition in view of the quality of the legal education that they provide to students and expect students to carry reasonable amount of debt in relation to their job prospects. Finally, state licensing authorities should require law school graduates to demonstrate the broad range of competencies needed to be an effective entry-level practitioner before licenses are issued.

With these aspirations for the legal academy and legal profession in mind, I contend that that many structural changes in the current system of legal education are necessary—beginning with the manner that schools admit law students, continuing with the manner they teach and assess them during law school, and concluding with the manner in which law school graduates are admitted to the bar. Some proposed reforms look to effective practices in American medical schools and business schools as models. For most of the reforms to occur, law schools must engage in paradigm shifts in several areas in addition to modernizing their curricula and pedagogies—they must alter the composition of their faculties, their approach to legal scholarship, and their relationship with members of the bench and bar. The ABA’s Section on Legal Education and Admissions to the Bar must pave the way in order for these structural changes to occur. In particular, the ABA standards governing law school accreditation must be amended substantially—with respect to faculty composition, faculty governance, faculty duties concerning scholarship, and law school curricular requirements. Without such changes, no meaningful systemic reform will ever occur, and the many problems that currently plague legal education will continue. The ball is in the ABA’s court but, ultimately, law schools must effect change themselves (with or without the ABA’s help, to the degree that they are able)—for the good of law students, the legal profession, and the public. We can, and should, turn the current crisis in legal education into an opportunity for meaningful change.

Christopher K. Odinet
Associate
Phelps Dunbar, LLP

Derek A. Webb
Fellow
Stanford Law School Constitutional Law Center
Winner of the 2012 American Inns of Court Warren E. Burger Prize

Abstract

For the past twenty years, legal scholars have poured over the records of the Philadelphia Constitutional Convention for insights into how to best interpret the Constitution’s various provisions.  In this Essay, I pour over these same materials for insights into how the delegates to the convention themselves maintained a level of civility through four months of grueling deliberations.  At a time when our legislative assemblies, still today populated mostly by lawyers, are too often prone to incivility, ad hominem argumentation, polarization, and resistance to compromise, the ups and downs of the Philadelphia Constitutional Convention may yet prove a fruitful model for constructive dialogue.  In particular, I argue that the convention was marked by a surprising degree of civic friendship borne out of frequent interaction, daily dinner parties that cut across party and sectional lines, and a variety of parliamentary procedures designed to encourage open-mindedness and rational deliberation.  Upon this foundation of civic friendship, the delegates reasoned together, utilizing a form of public reason when deliberating about more abstract, structural matters and compromising when deliberation broke down over issues that cut deep into economic or political interests.  This rich but often overlooked story about our nation’s founding deserves a telling for lawyers and politicians especially interested in the quality and tenor of deliberations in legislative assemblies today.