Hastings Law Journal

This Article addresses the peculiarities of issue preclusion in class action certification, particularly after the approval of the American Law Institute’s Principles of the Law of Aggregate Litigation in 2010 and the U.S. Supreme Court decision in Smith v. Bayer Corp. in 2011. After discussing the reasons why orders that deny class certification cannot have issue preclusive effect, this Article analyzes proposals to address the problem

More is not always better. Consider sex offender registration laws. Initially anchored by rational basis, registration schemes have spiraled out of control because legislators, eager to please a fearful public, have been given unfettered freedom by a deferential judiciary.

This Article does not challenge the state’s legislative power to enact sex offender registration laws. Instead, this Article posits that, even if sex offender registration schemes initially were constitutional, serially amended sex offender registration schemes—what this Article dubs super-registration schemes—are not. Their emergence demands reexamination of the traditionally held assumptions that defined original registration laws as civil regulations.

Two intertwined causes are responsible for the schemes’ constitutional downfall. The first is a legislative body eager to draft increasingly harsh registration and notification schemes to please an electorate that subsists on a steady diet of fear. When combined with the second cause, a Supreme Court that has yet to signal much-needed boundaries, the ensuing consequence is runaway legislation that is no longer rationally connected to its regulatory purpose. Ultimately, this Article is a cautionary tale of legislation that has become unmoored from its constitutional grounding because of its punitive effect and excessive reach.

The Internet often seems like a place without consequences, where we can share our thoughts without much consideration of whether the things we share might cause harm. And even when Internet users knowingly cause harm to others, many escape civil suit because they are not subject to personal jurisdiction in the plaintiff’s chosen forum. Often this is a result of courts’ fear of creating nationwide jurisdiction in cases involving the Internet, and often the reason given for denying specific jurisdiction is
that it was not reasonably foreseeable to the defendant that they might be haled into court in the plaintiff’s chosen forum. But attempts to limit jurisdiction over wrongful online conduct to those forums in which suit was “reasonably foreseeable” have actually made it more difficult for defendants to know when and where they might be held liable, as cases with the same facts can come to opposite results depending on the test applied. This Note explores the current state of personal jurisdiction for intentional, wrongful acts conducted over the Internet, ultimately concluding that courts must create a better test for whether specific jurisdiction exists in these cases. Only when courts focus on the defendant’s knowledge and intent with regard to the plaintiff can they create fair outcomes in individual cases and ensure that Internet users understand when and where they will be subject to suit.

Discovery costs have ballooned over the last decade, in large part because attorneys must review vast amounts of electronically stored information (“ESI”) for relevancy and privilege and must collect all potentially relevant ESI on which to perform those reviews. Courts can reduce costs associated with reviewing ESI by finding that the use of recently developed search software can be “reasonable” under Federal Rule of Civil Procedure 26(g) and Federal Rule of Evidence 502. Courts also can ultimately reduce costs associated with collecting ESI by taking into account the reasonableness of parties’ prelitigation document-management systems when determining whether to require production of inaccessible ESI at a responding party’s expense. Historically, courts were more likely to require production of inaccessible documents when the responding party had assumed the risks of high production costs by storing its information in a particular manner. In recent years, courts have retreated from this approach; some courts rejected the assumption-of-risk doctrine in favor of considering the reasonableness of the responding party’s document-management policies under the circumstances, while other courts explicitly refused to consider reasonableness. The latter approach has dominated in the courts since the FRCP were amended in 2006. This Note proposes that courts reinstate the reasonableness standard when deciding whether to grant motions to compel or to protect. By doing so, courts will incentivize the implementation of document-management systems that facilitate inexpensive discovery. This proposed approach will also stimulate technological innovation in the document-management software industry, which ultimately will lead to reduced discovery costs.

When laws cease to operate as intended, legislators and scholars tend to propose new laws to replace or amend them. This Article posits an alternative: offering regulated parties the opportunity to contractually bind themselves to behave ethically. The perfect test case for this proposal is labor law, because (1) labor law has not been amended for decades, (2) proposals to amend it have failed for political reasons and are focused on union election win rates and less on the election process itself, (3) it is an area of law already statutorily regulating parties’ reciprocal contractual obligations, and (4) moral means of self-regulation derived from contract are more likely to be effective when parties have ongoing relationships like those between management and labor organizations. The Article explains how the current law and proposed amendments fail because they focus on fairness as a function of union win rates, and then outlines a plan to leverage strong moral contractual obligations and related norms of behavior to create as fair a process as possible for employees to vote unions up or down.

U.S. courts of appeals seldom provide reasons for granting or denying rehearing en banc. The most likely reason for rehearing en banc is that other judges believe the three-judge panel deciding the case had erred, although rehearing is not sought each time judges disagree with a panel. The formal bases for rehearing a case en banc include the three desiderata of Federal Rule of Appellate Procedure 35—conflict with circuit precedent (intracircuit conflict), conflict with Supreme Court rulings, and presence of an issue of “exceptional importance”—and courts’ rules and general orders. Judges introduce other considerations, such as an intercircuit conflict, institutional concerns about resources necessary to hear a case en banc, and whether a case should proceed directly to the Supreme Court.

This Article presents a detailed description of reasons judges offer each other as they seek to have a case taken en banc or argue against such rehearing after a three-judge panel has filed its decision. The data are drawn from case files in the papers of Judge Alfred T. Goodwin of the Court of Appeals for the Ninth Circuit. He was the court’s en banc coordinator from the early 1970s through 1993 and thus was at the communications node for post-panel activity, which he monitored and directed. Reasons offered for rehearing a case en banc are discussed in terms of the above-noted FRAP categories, intercircuit conflict, and institutional reasons. Given particular attention is the relationship between rehearing a case en banc or letting it proceed quickly to the Supreme Court. Some general arguments by judges against en banc hearing are also presented.

U.S. housing law is finally receiving its due attention. Scholars and practitioners are focused primarily on the subprime mortgage and foreclosure crises. Yet the current recession has also resurrected the debate about the efficacy of place-based lawmaking. Place-based laws direct economic resources to low-income neighborhoods to help existing residents remain in place and to improve those areas. Law-and-economists and staunch integrationists attack place-based lawmaking on economic and social grounds. This Article examines the efficacy of place-based lawmaking through the underutilized prism of culture. Using a sociolegal approach, it develops a theory of cultural collective efficacy as a justification for place-based lawmaking. Cultural collective efficacy describes positive social networks that inner-city residents develop through participation in musical, artistic, and other neighborhood-based cultural endeavors. This Article analyzes two examples of cultural collective efficacy: the early development of hip-hop in the Bronx and community murals developed by Mexican immigrants in Chicago’s Pilsen neighborhood. These examples show that cultural collective efficacy can help inner-city residents mitigate the negative effects of living in a poor and segregated community and obtain more concrete benefits from urban revitalization in their communities. Cultural collective efficacy also provides a framework to examine important microdynamics in the inner-city that scholars and policymakers have ignored. Lastly, this Article devises new combinations of place-based laws that might protect cultural collective efficacy, such as: (1) historic districts with affordable housing protections secured through transferable development rights, (2) foreclosure prevention strategies, (3) techniques to mitigate eminent domain abuse, and (4) reinterpretations of the Fair Housing Act’s “affirmatively furthering” fair housing mandate. These examples of place-based lawmaking may more effectively promote equitable development and advance distributive justice in U.S. housing law and policy.

In the current federal litigation regarding the constitutionality of Proposition 8, a ballot initiative that amended the California state constitution to ban same-sex marriage, the issue of which party should pay the prevailing plaintiffs’ attorney’s fees was raised at the district court in 2009. The official proponents of the same-sex marriage ban, who intervened to defend the law at trial and lost, argued that they should not be held liable for the fees. But if they are correct, then the State of California, which did not defend the law and called it unconstitutional, could be made to pay if a final judgment is reached in the plaintiffs’ favor. The issue has been postponed as the case moves through the appellate process. Using the Proposition 8 case as a prominent example, this Note explores the issue of who should pay a plaintiff’s attorney’s fees when the proponent of a successful ballot initiative intervenes to defend its law against a civil rights challenge and loses. It is a significant question not only in the context of the Proposition 8 case, but also in the larger context of the citizen-created ballot initiatives permitted in twenty-five jurisdictions. The Note proposes the adoption of a new standard in both federal and state courts for ballot-initiative litigation, under which the defendant-intervenor will be held liable for the plaintiff’s attorney’s fees unless it can show that its position was substantially justified.

Google’s rollout of its Street View service in North America in 2007 provoked little concern about the privacy implications of private homes and individuals being easily viewed by potentially millions of persons. In contrast, Street View’s reception in Europe, particularly in Germany, has been marked by episodes of both public outrage and government concern. These divergent reactions can be explained in part by differing conceptions of the right to privacy—with European concepts of privacy based generally on the notion that an individual’s “dignity” should be protected—and the differing levels of protection afforded by those conceptions to aspects of a person’s identity.

This Note compares the legal protections afforded to individuals’ privacy in the U.S. and in Germany. In particular, this Note looks at the concept of the right to an “inviolate personality” that pervades privacy protection in Germany. This Note argues that such a right can be found in U.S. privacy jurisprudence, and that this right protects persons against the actions of private as well as government agents. Lastly, this Note argues that privacy rights must be defined broadly in an era when Street View is expanding to cover not just public streets and alleys, but also the interiors of museums and even places of business.

Following the Los Angeles Rampart Scandal, a concerned California legislature created post-conviction procedures intended to help wrongfully convicted people challenge convictions resulting from government misconduct. One of these mechanisms was California Penal Code section 1054.9, which allowed defendant-petitioners attacking sentences of death or life without parole to discover evidence to which they would have been entitled at trial upon a minimal showing. After years of broadly interpreting the statute, the California Supreme Court reversed direction with its decision in Barnett v. Superior Court, where it created a new hurdle for those seeking discovery: Defendant-petitioners must now show a reasonable basis for believing the requested discovery actually exists. This Note questions the bases for the Barnett decision’s narrowing of post-conviction discovery and considers how this case will affect defendant-petitioners’ ability to discover evidence of government misconduct in the future. In order to better identify and present claims of government misconduct, this Note looks to North Carolina’s open-file discovery statute as inspiration for new California legislation.