Protecting the Victims of Fraudulent Joinder: How Congress and Federal Judges Can Help

45 Rutgers L. Rec. 89 (2018) | WestLaw | LexisNexis | PDF

One of the most famous judges of the last century, Judge Learned Hand, observed, “I must say that as a litigant I should dread a lawsuit beyond almost anything else short of sickness and death.” The innocent victims of fraudulent joinder know this well. They are often small local businesses such as retailers, pharmacies, auto repair shops, or even individuals including store managers and salespeople.

“Fraudulent joinder” is a stepchild of our somewhat unusual mix of constitutional law, statutory provisions, and case law setting the jurisdiction of federal courts. The Framers’ apprehension regarding the potential for state court bias in favor of local interests led them to establish neutral federal courts. They viewed the availability of the federal courts to decide cases involving citizens of different states as critical to promoting public confidence that such claims would be decided promptly, efficiently, and impartially.

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Drowning in Data: How the Federal Rules Are Staying Afloat in a Flood of Information

45 Rutgers L. Rec. 65 (2017) | WestLaw | LexisNexis | PDF
As technology continues to permeate our everyday lives, the amount of data we generate increases—and rapidly. Consistent with Moore’s Law, in 2013, 90% of all the world’s data was created within the previous two years alone. Technological advances have not only changed the way we work and interact, but also how we litigate. The rise of “big data” and the commensurate rise of “big discovery” have drastically altered the quantity and types of information produced throughout the discovery phase in litigation. While increased access to information by parties involved in litigation can generally be seen as a positive development, it has also created opportunities for abuse.

Perhaps the most common, or at least the most obvious, scenario for what may be termed “eDiscovery abuse” arises when there is a large discrepancy in the quantity of information controlled between opposing parties in litigation. When one party possesses substantially more information than the other, there is little or no downside to making broad and burdensome discovery requests. Shrewd litigants can use carefully timed and tailored discovery techniques as a tool to exact larger (or pay smaller) settlements than they might have otherwise been able to obtain.

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In the Eyes of the Law Student: Determining Reading Patterns with Eye-Tracking Technology

45 Rutgers L. Rec. 39 (2017) | WestLaw | LexisNexis | PDF
First-semester law students spend over twenty hours per week reading legal cases in their casebooks for their law school classes. By the time students have completed their first year of law school, they have spent upwards of six hundred thirty hours reading cases in casebooks. And upon graduation, graduates have slogged through over 1,550 hours of reading cases in casebooks. Does the human brain develop strategies to make this repetitive task easier and what might that mean for readers and writers of cases? Although researchers have looked into the reading skills of legal readers through an empirical lens since the late 1980s, almost all of their studies have focused on the critical reading and rhetorical skills legal readers use to comprehend text, and the data collection has been achieved through self-reported information from the legal readers themselves. This article attempts a different approach – to look at the differences between novice legal readers and experienced legal readers through independent empirical evidence.
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Standing on Edge: The Lack of Standing Requirements in the USPTO Inter Partes Review Raises a Constitutional Issue

45 Rutgers L. Rec. 13 (2017) | WestLaw | LexisNexis | PDF

In 2012, the American Invents Act created a process called inter partes review (“IPR”), an administrative proceeding to challenge the validity of an issued patent. This new proceeding allows anyone to challenge the validity of a patent, regardless of the challenger’s relation to the patent or patent holder. Inter partes review represented a powerful alternative to challenging a patent in Article III court, a proceeding that normally requires the patent challenger to show standing. In recent years, inter partes review has become a hot button issue due to its use as a stock manipulation tool by hedge funds.

Inter partes review is unconstitutional because it is an improper delegation of judicial power, in that it confers the ability to decide on an issue already adjudicated by an administrative agency and removes this authority from the constitutional protection provided by an Article III court proceeding. The call for review comes not from the administrative agency itself, but instead is instituted by a third party. Administrative adjudications of this type are allowable only when the parties are afforded the regular constitutional protections that would be available in an Article III court. These constitutional protections are not present in inter partes review proceedings because the relaxed standing requirement allows challenges in an adversarial proceeding from a seemingly limitless group of people. View the entire article –>

Civil Litigation in the Age of President Donald J. Trump Welcome to the New World of Commerce America and Liability America and Liability Suppression

45 Rutgers L. Rec. 1 (2017) | WestLaw | LexisNexis | PDF

The HARD RIGHT now controls two branches of government. After President Trump fills the empty judicial appointments, including the Supreme Court, the Hard Right will control all three branches of the US government. The Hard Right has a plan that disenfranchises individuals from access to the courts to seek redress for consumer, environmental, civil rights, discrimination, and mass tort claims like voter suppression, which heaved President Trump over the 2016 goal line. This article previews the plan that the Hard Right seeks to execute. They seek to introduce legislation, roll back executive orders (by the former President and governors) which inevitably favors the legacy institutions and solvent parties who are the targets of these claims, and able to litigate endlessly without financial pain. The Hard Rights seeks to do this by perusing their plan through a legislative campaign in Congress, orders by the Executive Branch statutes from state legislative houses, and from governors. “Times, they are a changing”. The Hard Right seeks to flex its newly found legislative and executive muscle to suppress litigation. It seeks to impose liability on tort plaintiffs, victims of employment and gender discrimination, and consumer class actions litigants, among others. At the hands of the trial bar, The Hard Right seek to shift power to the hands of legacy institutions (and their brethren) who want to oust personal injury claims, class actions, consumer driven litigation, and other claims from the civil courts.

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Harmed by a Data Breach: Consumers May Find It Easier to Prove Standing Under Seventh Circuit Decision

44 Rutgers L. Rec. 192 (2017) | WestLaw | LexisNexis | PDF

Information is transmitted with increasing frequency in the United States. More than seventy-four percent of the people in the United States are capable of using the internet, allowing many people to share content over the web. However, as more and more information is shared, this widespread sharing is subject to certain risks and vulnerabilities. Technological advancements make the transmission of information easier for normal users while also making the theft of such information much easier as well. Data breaches have become a common occurrence in the United States, with an average of 100 successful cyber-attacks occurring each week. More and more companies have been affected by data breaches and the people whose data that were supposedly safeguarded by these companies have been consequently affected. Major companies including Target and Sony were subject to such breaches, making them spend millions of dollars in harm prevention. These incidents of data breach gave rise to multiple class action suits against major corporations. Although consumers sued the companies claiming damages and negligence, these claims were dismissed by the court due to the lack of standing. Article III, Section 2 of the Constitution limits federal jurisdiction to lawsuits that present an actual case or controversy. Furthermore, in Clapper v. Amnesty International, the Supreme Court held that plaintiffs had to prove they are at imminent risk of suffering from a concrete injury. Other circuits, like the Third, followed the holding and dismissed cases that were unable to prove imminent risk. The Seventh Circuit, however, held that class action plaintiffs have standing when they are able to prove an objectively reasonable likelihood that such harm will occur.

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On The Necessity of Preserving Access to State Courts and Civil Justice: Rediscovering Federalism & Debunking “Fraudulent” Joinder

44 Rutgers L. Rec. 160 (2017) | WestLaw | LexisNexis | PDF

With nothing less than the survival of the civil justice system hanging in the balance, tort reformers and tort law defenders have been locked in a conflict that spans the last four decades. Courts and legislatures at every level (federal, state, and local) are besieged by those who seek to limit or eliminate tort liability, limit or eliminate accountability for personal injury, and limit or eliminate the capacity of those wronged by misconduct of every type to have access to courts, juries, and justice. Defenders of the civil justice system, a loosely coalesced amalgam of consumer groups, attorneys, and academics, devote themselves to protecting that same system.
Those seeking the spoils of the tort reform wars (caps on punitive damages and non-economic loss, elimination of the capacity to pursue class actions at the state level, limitations on the use of evidence, elimination of strict liability, joint and several liability, and much, much more) would not only disagree with the above assessment, they would be offended. Tort reformers see theirs as a mission of essential change, reform, a quest for modernization of an outdated system that misallocates resources, suppresses innovation, weakens the U.S. economy and the U.S. position in international commerce, destroys jobs, and unduly privileges a very small number of consumers and their lawyers.

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First Circuit Gives the IRS a Seat in the Boardroom

44 Rutgers L. Rec. 145 (2017) | WestLaw | LexisNexis | PDF

The First Circuit Court of Appeals in United States v. Textron, Inc., issued a critically important tax decision giving the Internal Revenue Service (“IRS”) access to Textron’s tax accrual planning work papers. The case is a major victory for the IRS and in effect gives this government agency a seat in the room when tax accrual work papers are prepared. In Textron, the Court held en banc that the taxpayer could not, in response to an IRS summons, withhold from production to the IRS its tax accrual work papers under the long-recognized work product doctrine. The decision, which reversed the district court, was reached by a narrow margin of a five judge panel, with three judges representing the majority over two judges who wrote the dissenting opinion.
This decision was troubling to a number of large corporations and corporate counsel because it chills the taxpayer’s thorough analysis of the accounting and legal implications of financial decision making by placing those corporate thought processes directly into the hands of the IRS.

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Reducing the National Debt: Why the Federal Reserve Bank Should Refuse Receipt of $4.26 Trillion in Bond Interest and Principal Payments from the U.S. Treasury and Government Sponsored Enterprises (GSEs)

44 Rutgers L. Rec. 118 (2017) | WestLaw | LexisNexis | PDF

The national debt of the United States stands at $19.7 trillion. Prospects are poor for federal tax revenues reaching a point where this debt can ever be repaid or successfully managed. Because of extended wars and the financial crisis of 2008, extraordinary measures were taken to fund governmental entities, inject liquidity into the economy, and drive down interest rates to stimulate the economy. The semi-independent Federal Reserve Bank (“the Fed”), operating as the central bank of the United States, purchased approximately $4.26 trillion of United States Treasury bonds and government sponsored enterprises (GSEs) obligations to help in this effort in what is known as “quantitative easing.” These securities were purchased in the private or secondary marketplace through primary dealers. The Fed did not pay for these Large Scale Asset Purchases (LSAPs) with paper money, but instead credited each bond seller’s bank “using newly created electronic funds.” The banks then added those funds to the bond sellers’ accounts, and these sellers elected to spend those funds or leave them in the bank. If the funds stayed in the banks, then the banks could increase lending, purchase more assets or build up reserves on deposit at the Fed.

More broadly, the Fed’s securities’ purchases increased the total amount of reserves that the banking system keeps at the Fed. The Federal Reserve Act provided for these indirect purchases of U.S. Treasury securities to implement monetary policy. However, the extent of these purchases after 2008 was unprecedented. The Fed’s balance sheet has exponentially expanded, leaving the Fed the owner of a ladder of bonds of differing maturities at no cost. To date, the Federal Reserve has been returning interest it earns on these securities to the Department of Treasury, thus allowing the federal government to earn interest on its own deficit generating bonds. Also, as payment of principal on these bonds becomes due, the Federal Reserve has up until now taken this money and rolled it over into more treasury obligations. At a future date, this practice will stop, and the Fed will either sell these bonds back to private parties to drain excess liquidity from the economy or force the U.S Treasury to repay the principal on these bonds to the Fed.

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A New Calculus for the Measure of Mercy: Does the New Jersey Bail Reform Affect the Immigration Court Bond Hearings?

44 Rutgers L. Rec. 106 (2017) | WestLaw | LexisNexis | PDF

The short answer is no, the New Jersey Bail Reform will not directly affect how the immigration courts determine immigration bonds. However, while the state criminal system is wholly distinct from the federal immigration system, there are increasing intersections of state law having unintended consequences in immigration proceedings. Under the Supremacy Clause of the US Constitution, federal law is the “Supreme Law of the Land,” and states have no authority to regulate immigration enforcement. That said, there are a number of similar rationales between the new state bail reform and the existing bond determination criteria in the immigration court. This article outlines those similarities as well as the differences between the two. It is also important to note from a practical point of view that New Jersey bail reform has no impact on immigration detainers. An immigration detainer is the process by which Immigration and Customs Enforcement (ICE), a component of the Department of Homeland Security (DHS) may detain a non-citizen without a warrant, but only if ICE has “reason to believe” that the non-citizen “is likely to escape before a warrant can be obtained for his arrest.”

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