Law & the Courts

Justice Sotomayor Celebrates San Francisco’s New District Attorney Chesa Boudin

Supreme Court Associate Justice Sonia Sotomayor at the Supreme Court in Washington, D.C., November 30, 2018. (Jim Young/Reuters)

I’ll leave it to others to debate the merits of San Francisco’s new district attorney Chesa Boudin, who (according to this San Franciso Examiner article) won election in the face of “intense opposition” from the city’s police union and political establishment and who has plans “to immediately begin reforming the criminal justice system.” I am very surprised, though, to learn that Justice Sotomayor somehow saw fit to send Boudin a video of ardent congratulations at his swearing-in yesterday.

In her video, Sotomayor tells Boudin that she is sending “this message to tell you how much I admire you” and that “you too [i.e., like Sotomayor herself, as the context makes clear] are an example that gives hope to so many.” (Sotomayor highlights here that Boudin, the son of Weather Underground criminals Kathy Boudin and David Gilbert—and the adoptive son of their Weather Underground cohorts Bill Ayers and Bernardine Dohrn—“spent his childhood visiting parents incarcerated for committing serious felonies.”)

Sotomayor praises Boudin’s “strength of character and moral composure” and declares:

Your personal strength and commitment to reforming and improving the criminal justice system is a testament to the person you are and the role model you will continue to be for so many.

Sotomayor calls Boudin “a great beacon to many” and expresses her belief that “the city of San Francisco will be so very well served by a man whose life creed is believing, as you told me, ‘We are all safer when we uplift victims, hold everyone accountable for their actions, and do so with empathy and compassion.’”

Perhaps I’m mistaken, but it strikes me as highly unusual that a sitting Supreme Court justice—or any federal judge, for that matter—would publicly lavish such praise on an elected official, especially in the absence of a previous working relationship or close friendship that would give her a special basis for offering insights into his character. In fact, the only similar example that comes readily to mind is the troublingly partisan public cheerleading that Sotomayor, then on the Second Circuit, engaged in over the election of President Obama. But if anyone thinks I’m overlooking other examples, please let me know. (Statements at retirement ceremonies would seem to be readily distinguishable, but I’d still be interested in them.)

I also don’t think the fact that Boudin’s position is legal or prosecutorial rather than purely political makes Sotomayor’s embrace of him okay. But if you’re inclined to disagree, consider a hypothetical in which, say, Justice Alito showered comparable public praise on a prosecutor who won election by promising to be tough on crime.

Law & the Courts

This Day in Liberal Judicial Activism—January 9

Ultrasound of fetus at 20 weeks. (Letuve/Dreamstime)

1979—In Colautti v. Franklin, the Supreme Court rules unconstitutional, by a vote of 6 to 3, a Pennsylvania statute that requires that if an abortionist determines that a human fetus “is viable” or “if there is sufficient reason to believe that the fetus may be viable,” the abortionist must (except where “necessary in order to preserve the life or health of the mother”) use the abortion technique that “would provide the best opportunity for the fetus to be aborted alive” (i.e., to survive the abortion). Justice Blackmun’s majority opinion holds that the statute’s viability benchmarks “differ[] in some indeterminate way from the definition of viability as set forth in Roe” and in one other precedent and are unconstitutionally vague.

This being abortion litigation—in which the ordinary rules somehow don’t apply—the majority doesn’t see fit to adopt a sensible interpretation of the statute that would avoid its concerns, to limit the statute to permissible applications, or to obtain the Pennsylvania supreme court’s authoritative reading of the meaning of the statute.

JFK-appointee Byron White, in dissent (joined by Chief Justice Burger and Justice Rehnquist), argues that the statute’s language is not measurably different from Roe’s discussion of viability (“potentially able to live outside the mother’s womb”) and complains of the majority’s “unalterable determination to invalidate” the statute by its “incredible construction.”

Law & the Courts

OLC: Equal Rights Amendment Expired Decades Ago

In a post a year ago, I highlighted the highly dubious claim by supporters of the Equal Rights Amendment that the amendment remained ripe for ratification and that it was only one state short of the threshold needed for ratification. As I pointed out, the seven-year period for ratification that was part of Congress’s proposal of the ERA expired in 1979. Further, even if one were to assume that Congress lawfully extended the ratification deadline by majority vote in 1978, that extended deadline expired in 1982. Even supporters of the ERA recognized that they needed to start over after the 1982 deadline passed. And by dismissing as moot in October 1982 a case challenging the validity of that deadline extension, the Supreme Court clearly signaled its own judgment that ratification of the ERA had failed.

In September, Justice Ginsburg herself recognized that the ratification process would need to “start[] over again.”

So it’s no surprise, and ought not to be controversial, that the Department of Justice’s Office of Legal Counsel has issued an opinion advising the National Archives that the ERA proposed in 1972 long ago expired and that, in the event that another state were to purport to ratify that amendment, the National Archives should not and could not certify the ERA to be part of the Constitution. Given that OLC’s advice binds the National Archives, this opinion ought to put an end to the ratification charade.

Here is the concluding paragraph of OLC’s 38-page opinion:

For the reasons set forth above, we conclude that the ERA Resolution has expired and is no longer pending before the States. Even if one or more state legislatures were to ratify the 1972 proposal, that action would not complete the ratification of the amendment, and the ERA’s adoption could not be certified under 1 U.S.C. § 106b. In addition, we conclude that when Congress uses a proposing clause to impose a deadline on the States’ ratification of a proposed constitutional amendment, that deadline is binding and Congress may not revive the proposal after the deadline’s expiration. Accordingly, should Congress now “deem [the ERA] necessary,” U.S. Const. art. V, the only constitutional path for amendment would be for two-thirds of both Houses (or a convention sought by two-thirds of the state legislatures) to propose the amendment once more and restart the ratification process among the States, consistent with Article V of the Constitution.

Law & the Courts

This Day in Liberal Judicial Activism—January 8

Supreme Court Justices John Roberts, Elena Kagan, Neil Gorsuch and Brett Kavanaugh (Doug Mills/Pool via REUTERS )

2010—Solicitor General Elena Kagan personally assigns her deputy Neal Katyal to be part of “a group to get thinking about how to defend against inevitable challenges to the health care proposals that are pending.” Katyal promptly informs the Associate Attorney General’s office that “Elena would definitely like OSG [the Office of the Solicitor General] to be involved in this set of issues,” that he will take the lead, and that “we will bring Elena in as needed.” Two months later, with litigation impending, Kagan and Katyal consult on who should attend a White House meeting on what Katyal calls “litigation of singular importance.”

But in connection with (and presumably to facilitate) her nomination to the Supreme Court in May 2010, Kagan will nurture the notion that she had somehow (for utterly inexplicable reasons) “been walled off from Day One” from the litigation over Obamacare, and, after her appointment to the Court, she will decline to recuse herself from deciding cases arising from that initial round of litigation in which she took part. Instead, she will provide the decisive fifth vote in NFIB v. Sebelius (2012) rejecting the constitutional challenge to Obamacare’s individual mandate.

Law & the Courts

This Day in Liberal Judicial Activism—January 7

Sen. Edward Kennedy on Capitol Hill, January 2006 (Joshua Roberts/Reuters)

2006—Illustrating how deeply Democratic attacks on Republican judicial nominees have descended into farce, Senator Edward M. Kennedy fulminates in a Washington Post op-ed, two days before the start of Samuel Alito’s hearing on his Supreme Court nomination, that “credibility” is a “major issue” for Alito. (See here for more.)

Law & the Courts

Brown v. Board ‘Is a Hopeless Mess Doctrinally’

That blunt assessment of the iconic ruling in Brown v. Board of Education is provided not by the next Trump judicial nominee to be excoriated by the Left but by the distinguished liberal legal scholar Sandy Levinson.

Levinson observes that Brown could be quoted “for the proposition that only certain forms of intentional race-based segregation are illegitimate or for the proposition that all ‘separate schools are inherently unequal.’” He continues:

There is, to put it mildly, a huge difference between these two propositions, and the Court provides no clue as to which is “correct.”   Indeed, a full half-century later, we would be treated to the unedifying shouting match between Roberts and Breyer in Parents Involved where each claimed to be the true devotee of Brown while offering extraordinarily different readings of that case.

Levinson goes even further to raise, with apparent approval, “the possibility that at 65 Brown deserves to be retired, with a generous pension but otherwise basically ignored.”

Relatedly: In this NRO essay of mine from years ago, I pointed out that the “compelling moral case for the result in Brown has muffled contemporary discussion of the serious defects in its methodology.” Specifically, I argued that “although Brown‘s bottom-line result is both morally sound and legally right, the methodology of Brown illustrates—and has spawned—two characteristic operational defects in non-originalist decision-making”: namely, judicial reasoning that “often is indeterminate and unworthy of being taken seriously as law,” and the Supreme Court’s “disinclination to reexamine its own dubious precedents on the meaning of the Constitution.” (Contrary to the common misunderstanding, the Court in Brown did not purport to overrule Plessy v. Ferguson; rather, it limited itself to the question “whether Plessy v. Ferguson should be held inapplicable to public education.”)

Law & the Courts

This Day in Liberal Judicial Activism—January 4

Judge Vaughn Walker

2010—Eager to broadcast his show trial against Proposition 8 and traditional marriage, Chief Judge Vaughn Walker undertakes his third inept and illegal effort—all within the space of two weeks—to amend the local rule that bars televising of trial proceedings. Days after setting a ridiculously short period for public comment on a “proposed” revision of the local rule, Walker now purports to have amended the rule “effective December 22, 2009,” “pursuant to the ‘immediate need’ provision” of the governing federal statute. Two days later, Walker will authorize broadcast of the trial via YouTube.

But on January 13, the Supreme Court will block Walker’s broadcasting order and rule that his purported revision of the local rule was unlawful. Walker’s desire to broadcast the anti-Prop 8 trial “does not qualify as an immediate need that justifies dispensing with the notice and comment procedures required by federal law,” the Court states. Further, even if the rule had been validly revised, the anti-Prop 8 trial, given the risks of harassment of witnesses, would not be “a good one for a pilot program.” The Court rebukes Walker for ignoring the governing federal statute, for “attempt[ing] to change its rules at the eleventh hour to treat this case differently than other trials,” and for failing to “follow regular procedures.”

Law & the Courts

Introducing The Essential Scalia

I’m pleased to see that Penguin Random House has announced the forthcoming publication of The Essential Scalia: On the Constitution, the Courts, and the Rule of Law, co-edited by Sixth Circuit judge Jeffrey S. Sutton and me and featuring a beautiful foreword by Justice Elena Kagan.

I’ll have much more to say about this volume as the publication date approaches. For now, I’ll just observe that if you want to encounter Justice Scalia’s great legal mind in action, from broad questions about legal interpretation to specific disputes over constitutional provisions, this is the book for you.

The Essential Scalia completes a trilogy of volumes of Justice Scalia’s writings that I’ve had the privilege of co-editing (and that will all have been published by the Crown Forum imprint of Penguin Random House). The first two volumes, co-edited with Christopher J. Scalia, were Scalia Speaks: Reflections on Law, Faith, and Life Well Lived (2017), a New York Times bestseller, and On Faith: Lessons from an American Believer (2019). I’m grateful for the rave reviews that these first two volumes received—all credit, of course, goes to Justice Scalia—and am hopeful for an even stronger response to the new volume.

Law & the Courts

Judicial Appointments in 2020: Four Big Questions

1. Will another Supreme Court vacancy arise?

If a vacancy arises on the liberal side of the Court, President Trump will have the opportunity to create a six-justice conservative majority. If a vacancy arises from the conservative ranks, he will be able to perpetuate the five-justice conservative majority for the foreseeable future.

Either way, if Trump picks a strong nominee, look for that nominee to be confirmed expeditiously by the Senate. The 53-47 Republican margin ought to make confirmation relatively smooth, notwithstanding the ruckus the Left will raise.

2. Will many new vacancies open up on the federal appellate courts?

As of today, there are only two vacancies (current or declared future) on the federal appellate courts. The nominee to one of those vacancies (Andrew Brasher to an Eleventh Circuit seat in Alabama) will probably be confirmed this month.

As identified in this post, there are 29 sitting appellate appointees of Republican presidents who are, or who will soon be, eligible to take senior status or to retire, and there are an additional 38 such appointees of Democratic presidents. We’ll see how many, if any, decisions to take senior status are announced over the next week or two. Don’t count on many additional vacancies opening up over the course of the year.

The Senate confirmed 20 of Trump’s appellate nominees in 2019. We’ll see if it is able to reach double figures in 2020. I wouldn’t bet on its doing so.

3. Will the Senate trial of President Trump’s impeachment interfere with judicial confirmations?

I doubt that the impact will be much. The trial will take place in the afternoon hours, probably over the course of a few weeks. That leaves plenty of time to vote on judges.

4. Will Donald Trump win re-election?

This is the most momentous question for judicial confirmations (as well as for much else). If Trump is re-elected, he might well end up appointing four or five Supreme Court justices over his eight years, and he can continue his transformation of the federal appellate courts. If he loses re-election, the courts could be very much up for grabs.

Law & the Courts

Last Year in Judicial Appointments

In this post a year ago, I posed and addressed the “four big questions” on judicial appointments for 2019. Let’s revisit them:

1. “Will another Supreme Court vacancy arise?”

The doubts that I (and lots of other folks) had on this prospect proved to be warranted.

2. “How smoothly will key new personnel in the White House and Senate step into their roles?”

Kudos to White House counsel Pat Cipollone and his team—especially deputy White House counsel Kate Todd—for a very smooth transition. Ditto to new Senate Judiciary Committee chairman Lindsey Graham and his staff.

The numbers tell part of the story of success: 20 federal appellate judges and 80 federal district judges confirmed. The remarkably high caliber of so many of the confirmed judges tells the rest of the story.

3. “Will many new vacancies open up on the federal appellate courts?”

Only seven new vacancies (current or future) on the federal appellate courts arose or were announced during 2019. Six of those were promptly filled in 2019, and the nomination to the seventh (Andrew Brasher to the Eleventh Circuit to succeed Edward Carnes) will likely be confirmed this month.

4. “Will the Senate ensure timely floor votes on federal district nominees?”

Senate Democrats had been obstructing confirmation of judicial nominees by threatening thirty hours of post-cloture debate on nearly every nominee. As I put it, “One way, and probably the only way, to break the blockage is to reduce the period of post-cloture debate on district-court nominees from thirty hours to two hours.”

I’m pleased to say that’s exactly the course that was taken. No federal district nominees were confirmed during the first three months of 2019. At the beginning of April, majority leader Mitch McConnell led the successful effort to adopt a rule reducing the (never or rarely used) hours of post-cloture debate on district-court nominees (and most executive-branch nominees) from thirty to two. As a result, 80 federal district judges were confirmed in the last nine months of 2019, compared to only 53 during the first two years of Donald Trump’s presidency.

Law & the Courts

This Day in Liberal Judicial Activism—January 1


2020—Happy New Year! Welcome to another year of This Day in Liberal Judicial Activism.

I assure longtime readers that you’ll find plenty of new content this year. Plus, the permanent collection should serve as a useful reminder of how dominant liberal judicial activism is in our legal culture.

Let’s hope against hope that this New Year won’t provide additional material for further This Day posts.

Law & the Courts

This Day in Liberal Judicial Activism—December 31

Judge Vaughn Walker

2009—Judge Vaughn Walker, the chief judge of the Northern District of California, issues a notice concerning a proposed revision of the local rule barring public broadcasting of judicial proceedings and calls for public comments to be submitted within five business days.

Why the rush? Walker is presiding over the challenge to California’s Proposition 8, the voter initiative that restored the state’s traditional definition of marriage (in reaction against a lawless state supreme court ruling). His New Year’s Eve surprise is a critical step in his effort to turn the case into a high-profile, culture-transforming, history-making, Scopes-style show trial of Proposition 8’s supporters. Broadcasting the upcoming trial would generate much greater publicity for ringmaster Walker’s circus and would also surely heighten the prospect that witnesses and attorneys supporting Proposition 8 would face harassment, intimidation and abuse.

Two weeks later, the Supreme Court blocks Walker’s kangaroo-court procedures. The per curiam majority opinion issues a stinging rebuke of Walker’s shenanigans:

The District Court attempted to change its rules at the eleventh hour to treat this case differently than other trials in the district. Not only did it ignore the federal statute that establishes the procedures by which its rules may be amended, its express purpose was to broadcast a high-profile trial that would include witness testimony about a contentious issue. If courts are to require that others follow regular procedures, courts must do so as well.

2009—By a vote of 4 to 3, the Montana supreme court rules (in Baxter v. Montana) that a physician who assists a patient in committing suicide cannot be prosecuted for the crime of aiding a person to commit suicide because the patient’s consent to the physician’s assistance provides a complete defense. The majority invokes a general statute that establishes consent as a defense to criminal charges and holds that the exception under that statute for conduct against public policy doesn’t apply. But, as the dissent argues, Montana law has expressly prohibited assisting suicide for over a century, so assisted suicide is plainly against public policy and the defense of consent is therefore not available.

Law & the Courts

Governor Cuomo’s Fervent Opposition to Trump

New York Governor Andrew Cuomo (Carlo Allegri/Reuters)

Little about the judicial confirmation process is like it used to be. Few, if any, of the significant changes can be explained by anything rationally related to the actual process. The answer seems to be that Senate Democrats and their allies on the left are fighting President Donald Trump’s judicial nominees as if they were fighting Trump himself. New York governor Andrew Cuomo has provided fresh evidence for this conclusion.

New York state law allows a wide range of public officials to solemnize marriages. These include the governor, state legislators, and state court judges, but only a small number of federal judges with some connection to New York state. This category is limited to judges on the U.S. Court of Appeals for the Second Circuit (which includes New York, Connecticut, and Vermont); federal administrative law judges and U.S. District Court judges who serve within the state; and judges on the U.S. Court of International Trade, which is located in New York City.

These restrictions on federal judges lead to odd results. A Second Circuit judge who serves in Connecticut may solemnize marriages in New York state, but not a U.S. District Court judge from Connecticut. Under Connecticut law, a federal district judge from New York may solemnize a marriage in Connecticut but not vice versa.

An out-of-state couple may wed in New York state, but an out-of-state federal judge (except, of course, from the Second Circuit) may not officiate. Judges on the U.S. Court of International Trade come from all over the country and many of the court’s cases have no connection whatsoever to the New York state, but they too can solemnize New York marriages.

State senator Liz Krueger, a Democrat who has represented a district in Manhattan for nearly two decades, thought she had a practical, commonsense idea. On June 5, 2019, she introduced Senate Bill S6330A, a short bill to allow any federal judge to perform marriages in New York state. Within just two weeks, the Senate voted 61–1 and the Assembly voted 143–2 to pass the bill.

Those following the bill might have found it odd as weeks, then months, passed with no action by Governor Cuomo. Then he shocked everyone by vetoing the bill on Dec. 20. His veto message said: “I cannot in good conscience support legislation that would authorize such actions by federal judges who are appointed by [the Trump] administration.” Because “President Trump does not embody who we are as New Yorkers,” Cuomo said later, “I must veto this bill.”

This position creates results even more jarring than the current domestic relations law. The most MAGAfied Trump supporters in the state legislature can perform weddings in New York state, but the most liberal federal judges in 47 other states cannot. Cuomo’s position is baffling because, though he opposes allowing Trump-appointed judges to solemnize marriages in his state, Trump has already appointed nearly a dozen who may do so because they fit within the current law’s categories.

For that matter, as Krueger pointed out, “since any New Yorker can become a minister online for $25 and legally perform weddings, I didn’t consider this to be a major issue.” That would include any of the 2.6 million New Yorkers who voted for Trump in 2016. Krueger is one of the most liberal members of a very liberal state legislature. She introduced the Senate version of the Reproductive Health Act which, when Cuomo gladly signed it, became the most radically pro-abortion law in the country. Her motivation for introducing the bill to allow more officials to solemnize marriages was simple: “The more the merrier!”

Not so much. Legislatures adopt legislation, and governors sign or veto bills, that any of us may support or oppose. But Cuomo’s position in vetoing this bill just doesn’t make sense. Current New York law already allows what he claims his veto prevents. His visceral, almost mindless, opposition to the Trump administration has created a situation that, depending on your perspective, looks like something between baffling and simply foolish.

Law & the Courts

This Day in Liberal Judicial Activism—December 30


2004—In United States v. Bad Marriage, a divided Ninth Circuit panel rejects the 41-month prison sentence received by the aptly named Mr. Bad Marriage. Released from tribal jail so that he could attend an Alcoholics Anonymous meeting, Bad Marriage instead attacked his girlfriend. His guilty plea to a charge of assault resulting in bodily injury came on top of 35 prior state-court convictions and some 60 convictions in tribal court. Applying the Sentencing Guidelines’ rules for upward departures, the sentencing judge departed from the usual sentencing range based on his judgment that Bad Marriage was likely to commit other crimes.

On review, the majority opinion by Judge Warren Ferguson somehow sees fit to thunder that the case is “a powerful indictment of the criminal justice system” and that the problems of alcohol abuse and crime on Indian reservations “cry out for treatment, not simply more prison time.” Never mind, as dissenting judge Consuelo Callahan points out, that Bad Marriage was released from jail to get treatment when he instead assaulted his girlfriend.

In the end, the panel’s spurious rejection of the upward departure causes Bad Marriage to be subjected to more prison time: Resentencing Bad Marriage after the Supreme Court’s January 2005 ruling (in United States v. Booker) that the Sentencing Guidelines are advisory, not mandatory, the district judge imposes, and a different Ninth Circuit panel affirms, a 49-month sentence.

2008—Poor Stephen Reinhardt. The Ninth Circuit arch-activist who has made a career of defying the Supreme Court—“They can’t catch them all,” he boasts of his wayward rulings—purports to take offense that a dissent from the denial of rehearing en banc in Belmontes v. Ayers (see This Day for June 13, 2008) implies that his rulings in that case have “flouted the will of the Supreme Court.” Some eleven months later, in a per curiam opinion (in Wong v. Belmontes), the Supreme Court summarily reverses Reinhardt—the third time in this same case that the Court has reversed or vacated one of his rulings. Further, the Court states that it finds his reasoning incomprehensible and fanciful, and it notes his manipulative recharacterization of the evidence. (See This Day for November 16, 2009.)

Law & the Courts

The Oxymoron of ‘the Conservative Case for Class Actions’

Vanderbilt University Law School professor Brian Fitzpatrick’s new book, The Conservative Case for Class Actions, has a provocative title. It’s not shocking that the book’s arguments — against freedom of contract to agree to arbitration clauses, for distorting the free market through unanswerable self-appointed plaintiffs’ lawyers engaging in regulation by litigation — are not particularly “conservative.” (Full disclosure: Fitzpatrick critiques my work in his book and has testified as an expert against my clients’ objections to abusive fee requests several times.) What’s more surprising is that the book is not really a case for class actions.

Fitzpatrick’s main argument is built on false premises. Fitzpatrick says meritless litigation isn’t a problem because class-action attorneys get paid only on contingency. Thus, their incentives are to bring winning cases where their clients get relief; the more relief, the more payment for the clients. Corporate defendants are thus deterred from wrongdoing by the payments to class members and attorneys in these cases, a social benefit.

But all too often, courts pay attorneys based on the illusion of relief: cy pres payments to the attorneys’ and defendants’ favorite charities; phony-baloney injunctions that do no good for the class; coupons or other claims processes where over 90 to 99 percent of the class gets nothing, but courts pay attorneys a percentage of the fictional 100 percent recovery “made available.” And everyone has the incentive to make that happen: The defendant wants to get out of the case as cheaply as possible; the plaintiffs’ attorneys want to maximize their fees. Because courts largely let them get away with it, plaintiffs’ attorneys would cost themselves millions if they didn’t try to use these gimmicks to benefit themselves at the expense of their clients. (The word “fiduciary” never appears in the book.) The Tenth Circuit recently affirmed approval of a $0 settlement where attorneys received $20 million — relying on a faulty judicial opinion that relied on a Fitzpatrick law-review article to justify the disparity.

But when attorneys profit even when their clients get next to nothing or less, it becomes a viable business model to bring and settle meritless class actions. Because the cost of defense is so high — even if a business could be promised that a trial wouldn’t result in an erroneous judgment — defendants find it cheaper to pay attorneys to go away than to fight. But punishing innocent corporations with millions in litigation taxes is the opposite of the deterrence that Fitzpatrick trumpets as class actions’ benefit. It’s odd that a book whose argument is so reliant on the idea of incentives largely ignores the perverse incentives that affect every class-action settlement. But it is by misnaming this government-created rent-seeking mechanism — whereby above-market windfall fees for attorneys are set without competitive bidding — “the free market” that Fitzpatrick asserts class actions are “conservative.” Yet if the system were working the way Fitzpatrick’s model assumes, my organization wouldn’t have been able to win so many federal appeals and hundreds of millions of dollars for consumers by challenging abusive settlement practices.

Even the case Fitzpatrick is proudest of — a national case against banks over debit-card overdraft fee assessments set by contract — is less than persuasive. Consumers received less than 7 percent of their overdraft fee payments as refunds (a rare settlement where class members were paid directly); the attorneys received over $123 million with the help of Fitzpatrick’s expert testimony. If banks did something “illegal” by charging overdraft fees in the manner their customers agreed to, then they paid a small tax on billions of ill-gotten gains and got to unjustly keep the lion’s share. But if banks did nothing wrong, and spent hundreds of millions to insure against the risk of an erroneous multibillion-dollar judgment after the judge refused to quickly dismiss the case, then that is also an obvious injustice. (Ironically, the court used that huge risk of plaintiffs’ losing as grounds to award an above-average fee. Talk about perverse incentives!) Either way, deterrent value is minimal or even counterproductive. And the case demonstrates that the entrepreneurial incentives of attorneys are less to rectify wrongdoing than to find deep pockets whom they can falsely accuse of wrongdoing.

Meanwhile, banks compensated for the settlement’s required change in overdraft practices by adding monthly debit-card fees that affect consumers who never had an overdraft. Countless lower-income consumers are forced to go unbanked when they would have preferred what the lawyers stopped. That undemocratic deadweight loss and regulation-by-litigation restricting freedom of contract is something, but it isn’t conservative.

Toward the end of the book, Fitzpatrick acknowledges criticisms and proposes a number of reforms. Yes, merger litigation is “rightly criticize[d],” as are class actions that threaten billions in statutory damages. Yes, make it easier to quickly dismiss meritless cases before defendants run up substantial litigation costs, including allowing interlocutory appeals, and require plaintiffs to share defendant’s discovery expenses. These, and others, are all interesting academic ideas, though ones unlikely ever to win bipartisan political support, given the billions they’d cost the trial bar. But a case that recognizes the need for such dramatic reforms is a case for something other than the American class action as it exists in 2019.

Ted Frank is a Washington, D.C., attorney and director of the Center for Class Action Fairness at the Hamilton Lincoln Law Institute.

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