Federal Judges Are Asking More—and Earlier—Questions About Class Action Settlements

May 28, 2021

The decision from U.S. District Judge Vince Chhabria of the Northern District of California on Wednesday to reject a proposed $2 billion class action settlement over Roundup didn’t come lightly. Chhabria gave the lawyers nine questions to consider ahead of an approval hearing, which lasted nearly an entire day, during which he grilled them with more questions… “What you’re seeing is that judges are flexing their muscle and showing they’re a part of this process,” said William Rubenstein of Harvard Law School. “This development is a good thing because it demonstrates there’s good oversight in the system and the judges are increasingly keen on using the leverage they have to the benefit of the class members.” … In both cases, lawyers were dealing with personal injury claims, which traditionally are brought through individual lawsuits. Whether they can be part of a class action remains “questionable,” Rubenstein said. “Starting with the NFL case, you’re seeing lawyers playing around with this,” he said. For judges, those efforts have led to “some of the more creative types of class actions they’re seeing, and particular problems in the structuring of class action settlements.”

Why Merrick Garland Is Protecting William Barr

May 28, 2021

An op-ed by Noah Feldman: Attorney General Merrick Garland is contesting a court order that would require disclosure of an internal Department of Justice memo sent to former AG Bill Barr. The subject: Why not to prosecute Donald Trump. Garland’s decision is a Rorschach test for anyone interested in restoring normalcy and credibility to the Department of Justice after the institutional bloodbath of the Trump years. From the standpoint of transparency and openness, the public should see the memo to better understand what went wrong in Trump’s DOJ. But from the standpoint of returning to the department’s traditional norms — including the norm of depoliticizing criminal prosecution decisions — the refusal to disclose is weirdly reassuring. It’s a sign that the Biden Department of Justice will reaffirm the department’s commitment to confidentiality and not use the DOJ, as Trump tried to, to score political points. I realize this second way of seeing the inkblot is counterintuitive and, to some, frustrating. So I’m not going to urge it on you. I’m just going to explain it, even while acknowledging the validity of the first, disclosure-oriented interpretation.

Octopuses Not Recognized As Animals According To Welfare Act Dictating Lab Treatment

May 27, 2021

If you caught the recent Oscar-winning film My Octopus Teacher, you’ll likely join octopus enthusiasts in marveling at the incredible intelligence of these complex and curious animals. It may shock you, then, to learn that according to the US federal government, octopuses aren’t considered “animals” when it comes to their treatment in federally funded research…The legal standing seems juxtaposed to the cognitive and behavioral traits of octopuses, which have seen them become increasingly frequent test subjects in federally funded research in recent years, says a release from Harvard Law School… “Under existing law, cephalopods are not required to be provided with ‘the appropriate use of tranquilisers, analgesics, anesthetics, paralytics and euthanasia’ or ‘appropriate pre-surgical and post-surgical veterinary medical and nursing care’,” wrote clinical fellow Kate Barnekow of the Animal Law and Policy Program at Harvard Law School in an email to IFLScience. “This means that cephalopods may be used in studies deemed inhumane to conduct on other animals – or too expensive to conduct on other animals that would legally be required to be provided with appropriate sedatives, pain-relievers, and surgical care.”

The Battle Between Mayor Janey And Commissioner White Continues

May 27, 2021

On Tuesday, a Superior Court judge refused to block the city of Boston from firing its police commissioner, Dennis White, over decades-old domestic violence allegations. The next day, the same judge also ordered a stay on her own ruling, and on the city’s termination process, while White appeals the decision. WBUR’s Ally Jarmanning brings us the latest on this still developing story. We also break down the legal arguments with Nancy Gertner, retired federal judge, senior lecturer at Harvard Law School, and WBUR Legal Analyst.

Will Law Firms and Gen Z Attorneys Be Able to Meet in the Middle?

May 27, 2021

The pandemic has changed Sarah Shahatto’s perspective on her career. It has made the third-year law student at the University of California Irvine School of Law question, and reimagine, her future as an attorney…Harvard Law School professor Scott Westfahl says it will take a lot more than pro bono programs to give attorneys a true sense that their work has purpose and meaning. Even before Gen Z attorneys enter the workforce in meaningful numbers, the pandemic has primed their concern, as isolation and burnout take their toll on the legal industry and the world at large. Westfahl has gotten multiple calls in the past few months from former students who are now junior associates, and even partners, who feel as if the pandemic has sapped away any meaning from their work. “I’m getting calls every week from students that graduated years ago that say, ‘I’m burned out’ and are starting to question whether it all matters,” Westfahl says. “For a long time many people found meaning and purpose coming into a beautiful office with their name on the door and being in an office together with really smart and interesting people,” he continues. But that won’t move the needle anymore.

Florida’s New Social Media Law Violates the First Amendment

May 27, 2021

An op-ed by Noah Feldman: Florida’s new law punishing social media platforms that ban politicians for violating their terms of service is obviously unconstitutional, violating the companies’ free speech and free association rights. But the law is a good opportunity to think about how the First Amendment applies to for-profit corporations, and suggests reasons to think more deeply about the infamous 2010 Supreme Court decision, Citizens United v. FEC. The key provision of the Florida law states that “a social media platform may not willfully deplatform a candidate for office” — and imposes a $250,000 per day fine for violations. It’s obviously aimed at the deplatforming of former president Donald Trump by Twitter, Facebook and others. (Disclosure: I advise Facebook on free expression issues and helped design the oversight board that recently upheld the Trump deplatforming; the opinions expressed in this column are, as always, altogether mine and not at all Facebook’s.) The law almost certainly violates Section 230 of the Communications Decency Act, which gives platforms a safe harbor against lawsuits for their content moderation decisions. For that reason, a federal court might invalidate the law on statutory grounds without ever ruling on its First Amendment problems.

The Free Speech Implications of the “De-Platforming” of Donald Trump

May 27, 2021

The “de-platforming” of former President Donald Trump from prominent social media platforms following the January 6, 2021 attack on the United States Capitol raises questions about the power of private corporations to regulate public conversation, and the legal system’s power to regulate them, in our wired age. Join the ACS Arizona, Austin, DC, Michigan, Orange County, and Philadelphia Lawyer Chapters as we welcome a panel of prominent experts to discuss the broader implications for free speech. Featuring: Katie Fallow, Senior Staff Attorney, Knight First Amendment Institute at Columbia University; Gautam Hans, Assistant Clinical Professor of Law, Vanderbilt Law School; Colin Stretch, Lecturer in Law, Columbia Law School, and former General Counsel of Facebook, Inc.; Laurence H. Tribe, Carl M. Loeb University Professor, Emeritus, Harvard Law School; Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law, UCLA School of Law. Moderated by: Dan Kaplan, Assistant Federal Public Defender; Member, ACS Phoenix Chapter Board of Directors.

Laurence Tribe: Trump acting like a dictator with ‘absolute immunity’ defense

May 27, 2021

Donald Trump’s lawyers argue the former president has “absolute immunity” from legal charges related to the Capitol invasion, which defense Harvard Law School professor Laurence Tribe calls “a remarkable claim.” Prof. Tribe says Donald Trump answers to the American public, and that “one of the ways you answer to the people is by being held accountable for the damages that you do when you aim an angry mob at members of Congress.”

Texas Abortion Ban Is Both Devious and Doomed

May 26, 2021

An op-ed by Noah Feldman: When a state adopts a flatly unconstitutional anti-abortion law, as Texas did last week, it ordinarily never takes effect. Activists immediately ask a federal court to order state officials not to enforce it, and the court does. What’s unusual — and scary — is that this time, Texas is trying to get around this hurdle through legal trickery. Its efforts are likely to fail, but seeing how and why requires going through a bit of detail. Start with Texas’s goal. The law just enacted makes abortion unlawful after a fetal heartbeat can be detected. Because that can happen as early as six weeks of pregnancy, the law effectively outlaws abortion — a direct violation of the constitutional right to choose established in Roe v. Wade. The Supreme Court has agreed to consider a case out of Mississippi in which it might overturn part of Roe. But until that happens, Roe is the law, and the Texas statute is certainly unconstitutional. Texas knows its law violates the Constitution. And it knows the federal courts would ordinarily block it from taking effect. So the legislature devised a trick. Instead of seeking a criminal ban, enforced by the state’s prosecutors, it made abortion a civil violation for which physicians, clinics and anyone else abetting abortion could be sued for monetary damages. Then, the Texas law authorized any private citizen, even someone with no connection to the abortion in question, to bring the civil lawsuit and keep the damages.