• Selected
• Entire List

Abstract:
Discussions of sovereign immunity assume that the Constitution contains no explicit text regarding sovereign immunity. As a result, arguments about the existence - or nonexistence - of sovereign immunity begin with the English and American common-law doctrines. Exploring political, fiscal, and legal developments in England and the American colonies in the seventeenth and eighteenth centuries, this Article shows that focusing on common-law developments is misguided. The common-law approach to sovereign immunity ended in the early 1700s. The Bankers' Case (1690-1700), which is often regarded as the first modern common-law treatment of sovereign immunity, is in fact the last in the line of English common-law decisions on sovereign immunity. After (and in part because of) the Bankers' Case, settling claims against the Crown became a function of Parliament, swept up within its newly won powers over finance and appropriations. After examining comparable developments in the American colonies and during the Confederation period and the formation of the Constitution, the Article demonstrates that the Appropriations Clause embedded in the Constitution the principle of congressional supremacy - and a resulting lack of judicial power-over monetary claims against the United States, a point recognized by early cases and commentators. As such, the Appropriations Clause provides a textual basis for the federal government's immunity from suits on claims seeking money damages.

Constitutional Law, Federal Courts, Legal History, Sovereign Immunity, Appropriations Clause

Abstract:
This book review engages recent scholarship on the nature of civil-rights lawyering in the African-American bar in the generation before Brown v. Board of Education. Using the recent biography of Earl Burrus Dickerson, one of the leaders of the African-American bar before World War II, as its vehicle, the review finds support for the emerging thesis that, in the years before Brown, the African-American civil-rights bar was not focused on ending de jure segregation in public institutions, but rather on building up African-American institutions. Contrary to recent scholarship, however, the review suggests that Dickerson personally preferred a more integrationist strategy, and his efforts to build up African-American institutions was less a conscious strategy than a realization of the limitations on his ability to practice law as he wished. Freedom of action, rather than racial equality, was Dickerson's great motivator.

Civil Rights,U.S. Legal History,Class Actions

Abstract:
The constitutional requirement that class representatives and class counsel adequately represent class members is the foundation on which the modern law of class actions is built. The traditional account of inadequate representation - that representation is inadequate when conflicts of interest exist within the class or between the class and counsel - is insufficient, for nearly every class action contains within it conflicts of interest that render the class action constitutionally impermissible according to this account. In place of the unrealistic "no conflict of interest" approach to adequacy, this article proposes a "do no harm" approach: Representation is adequate as long as the actions of the class representative and class counsel leave each class member in no worse a position than the member would have occupied had that member retained individual control over his or her lawsuit. The article justifies this principle on doctrinal, philosophical, and economic grounds, and defends it against competing alternatives.

Abstract:
This essay, prepared for the Symposium on the Judiciary in the Twenty-First Century at Loyola University Chicago School of Law, discusses the circumstances in which courts should permit exit into non-adjudicatory processes such as ADR, mass-resolution facilities, or adjudication before administrative agencies. It begins by arguing that courts must justify their decisions to allow litigation-eligible disputes to exit into other resolution mechanisms. It then proposes three possible justifications for exit: consent of all affected parties, a lack of harm caused to any affected party, or a gain in social utility from using a non-adjudicatory process. The essay then maps those three justifications onto, respectively, ADR, mass-resolution facilities, and administrative adjudication to provide some rules of thumb to guide courts in their determinations whether and when to permit exit.

Alternative Dispute Resolution, ADR, Civil Procedure, Courts