Civil Procedure
Tax Cases Make Bad Work Product Law: The Discoverability of Litigation Risk Assessments After United States v. Textron
119 Yale L.J. 1715 (2010).
Olmstead v. L.C. and the Voluntary Cessation Doctrine: Toward a More Holistic Analysis of the "Effectively Working Plan"
118 Yale L.J. 1013 (2009).
Clearing the Smoke from Philip Morris v. Williams: The Past, Present, and Future of Punitive Damages
118 Yale L.J. 392 (2008). In Philip Morris USA v. Williams, the Supreme Court held that the Constitution does not permit the imposition of punitive damages to punish a defendant for harm caused to third parties. This Article critiques the reasoning, but seeks ultimately to vindicate the result, of that landmark decision. It argues that, although the Court’s procedural due process analysis does not stand up to scrutiny, punitive damages as punishment for third-party harm do indeed violate procedural due process, but for reasons far more profound than those offered by the Court. To reach that conclusion, the Article confronts the most basic and fundamental questions about punitive damages—questions that the Supreme Court has studiously avoided for more than a century: what, exactly, is the purpose of punitive damages, and how is it constitutional to impose them as a form of punishment in a judicial proceeding without affording the defendant the protection of the Constitution’s criminal procedural safeguards? The Article argues that punitive damages are properly conceptualized as a form of punishment for private wrongs: judicially sanctioned private revenge. As such, it makes both theoretical and doctrinal sense to impose them without affording the defendant criminal procedural protections, which are necessitated only for the punishment of public wrongs on behalf of society. When, however, courts employ punitive damages as a form of punishment for public wrongs, they become a substitute for the criminal law, which thus makes an intolerable end run around the Bill of Rights. For that reason, Williams was ultimately correct that punitive damages must be limited to punishment for the harm done to the individual plaintiff, not the harm done to the general public. This reasoning suggests that contrary to the emerging conventional wisdom, Williams does not stand in the way of the imposition of nonpunitive extracompensatory damages of the type favored by law and economics scholars as a means of forcing the defendant to internalize the costs of its behavior in order to achieve optimal deterrence.
Deterring E-Discovery Misconduct with Counsel Sanctions: The Unintended Consequences of Qualcomm v. Broadcom
The Anders Brief in Appeals from Civil Commitment
118 Yale L.J. 272 (2008). In Anders v. California, the Supreme Court crafted a procedure to prevent appointed attorneys from abandoning their clients after trial. The Court provided that if counsel wishes to withdraw from a “frivolous” case, he or she first must file a brief referring to anything in the record that might support an appeal. Then, before permitting withdrawal, the appellate court examines the brief and the proceedings below to determine whether counsel’s assessment was proper. Since deciding Anders in 1967, the Supreme Court has not determined whether this procedure also applies to appeals from civil commitment. Several recent state court decisions, however, have rejected this possibility. This Note criticizes these decisions on both doctrinal and policy grounds. First, a review of relevant case law suggests that Anders should be viewed as derived from the Fourteenth Amendment rather than from the Sixth Amendment, furnishing a compelling constitutional basis for requiring Anders in both criminal and civil-commitment appeals. Moreover, Anders may have unique utility in furthering the norms of “therapeutic jurisprudence” by alleviating the role dilemma often manifested by civil-commitment attorneys.
Balancing Burdens: Clarifying the Discovery Standard in Arbitration Proceedings
117 Yale L.J. 1559 (2008).
A Blueprint for Applying the Rules Enabling Act's Supersession Clause
117 Yale L.J. 1225 (2008).
The Marriage of Family Law and Private Judging in California
116 Yale L.J. 1615 (2007)
When Do Irreparable Benefits Matter? A Response to Douglas Lichtman on Irreparable Benefits
Irreparable Benefits
116 Yale L.J. 1284 (2007) The conventional approach to preliminary relief focuses on irreparable harm but entirely neglects irreparable benefits. That is hard to understand. Errant irreversible harms are important because they distort incentives and have lasting distributional consequences. But the same is true of errant irreversible gains. When a preliminary injunction wrongly issues, then, there are actually two distinct errors to count: the irreparable harm wrongly imposed on the nonmoving party, and the irreparable benefit wrongly enjoyed by the moving party. Similarly, when a preliminary injunction is wrongly denied, there are again two errors: the irreparable harm wrongly imposed on the moving party, and the irreparable benefit errantly accorded the nonmoving party. The conventional approach to preliminary relief mistakenly accounts for only half the problem. Read Professor Lichtman's Pocket Part essay on this topic, Irreparable Benefits. Read Professor Porat's response, When Do Irreparable Benefits Matter? A Response to Douglas Lichtman on Irreparable Benefits. Read Professor Ben-Shahar's response, Against Irreparable Benefits. Read Aaron Petty's response, The Relative Weight of Irreparable Benefits .
Conclusion
Editor's Note: This is the last of seven installments on the electronic discovery rules. To view an index of the installments, click here. Much has been written on the expense, burden, and delay that responding to requests for electronic discovery entails. Some cost and complexity exists because many litigants, lawyers, and—some would say—especially judges are new to the problems created by the intersection of litigation and modern information technology. The result is the unusual circumstance of problems that are simultaneously ubiquitous and unfamiliar. Discovery problems are likely to remain unfamiliar because technology will change in ways we cannot predict with any confidence.
Sanctions
Editor's Note: This is the sixth of seven installments on the electronic discovery rules. To view an index of the installments, click here. Most discussions of e-discovery-related sanctions have been about alleged failures to meet preservation obligations, although sanctions also apply if parties intentionally destroy electronically stored information. The dynamic nature of electronically stored information and the complexity of electronic information systems make preservation obligations less clear and spoliation allegations more likely than was true of conventional discovery. A party can save most electronically stored information indefinitely, but that does not mean that they must—or should—preserve everything. In an ideal world, individuals and organizations would save what they need for legal, business, or personal purposes and be free to discard everything else.
Metadata and Issues Relating to the Form of Production
Editor's Note: This is the fifth of seven installments on the electronic discovery rules. To view an index of the installments, click here. Among the choices to be made in deciding what form or forms to use in producing electronically stored information is whether to delete, or “scrub,” the metadata. This category of electronically stored information does not have a direct paper counterpart. Metadata is described as “data about data” or “information describing the history, tracking, or management of an electronic document,” although it is increasingly used to describe a variety of “hidden” information that accompanies electronic files, such as “track changes.” Courts have struggled with whether parties may produce electronically stored information without metadata included. The rules do not specifically address metadata but do provide a procedure and guidance that courts are already using.