James Sample, "Caperton: Correct Today; Compelling Tomorrow." Abstract:
This symposium article asserts that Caperton v. A.T. Massey Coal Co. is correct in result; correct in its narrowness; and correct in calling on courts to be more rigorous in recusal than due process requires. The article argues that Caperton is a model of judicial restraint and that, paradoxically for a decision overturning a state justice‟s non-recusal, the majority‟s approach is a model of cooperative federalism. These characteristics are particularly exemplified by the degree to which the opinion tracks the counsel offered by the Conference of Chief Justices, both as to what the opinion decides, and as to what it does not decide. Second, the article asserts that the breadth of support for the petitioners in Caperton, combined with state-level developments in the decision‟s aftermath, support the proposition that the decision‟s greatest impact will be not as dispositive precedent in itself, but in spurring greater vigilance in recusal, both systemically and among individual jurists.
Erichson & Zipursky, on aggregate litigation, "Consent versus Closure." Abstract:
Claimants, defendants, courts, and counsel are understandably frustrated by the difficulty of resolving mass tort cases. Defendants demand closure, but class certification has proved elusive and non-class settlements require individual consent. Lawyers and scholars have been drawn to strategies that solve the problem by empowering plaintiffs’ counsel to negotiate package deals that effectively sidestep individual consent. In the massive Vioxx settlement, the parties achieved closure by including terms that made it unrealistic for any claimant to decline. The American Law Institute’s Principles of the Law of Aggregate Litigation offers another path to closure: it proposes to permit clients to consent in advance to be bound by a settlement with a supermajority vote. This article argues that, despite their appeal, both of these strategies must be rejected. Lawyer empowerment strategies render settlements illegitimate when they rely on inauthentic consent or place lawyers in the untenable position of allocating funds among bound clients. Consent, not closure, is the touchstone of legitimacy in mass tort settlements.
Bradley Lipton, "A Call for Institutional Reform of the Office of Legal Counsel." Abstract:
The Office of Legal Counsel (OLC) is extraordinarily powerful, standing as the legal arbiter of what the executive branch can and cannot do. Yet during the administration of George W. Bush, the office sanctioned legally unsound policies. This Essay explains what went wrong in the Office of Legal Counsel during the Bush Administration and suggests institutional reform to prevent such problems in the future. I begin by showing how OLC’s conduct violated widely held norms within the legal community. Though many observers have focused on OLC’s actions authorizing torture, this Essay contends that the office’s role permitting warrantless wiretapping within the United States was a unique violation of lawyerly values. The Essay then analyzes the source of the problems within OLC. I argue that the structure of OLC has lent itself to being particularly political. To remedy the situation, OLC should be restructured to attract a corps of less partisan attorneys who remain at the office for a longer period of time.