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Volume 107 - Issue 2



Pfander, James E. | January 1, 2013

Preface to Martin H. Redish Festschrift. The pieces in this issue were presented on March 30, 2012, at a daylong symposium in honor of Professor Redish’s long and fruitful career as a member of the Northwestern law faculty.

The Continuing Gloom About Federal Judicial Rulemaking

Freer, Richard D. | January 1, 2013

In 2013, the Federal Rules of Civil Procedure turn seventy-five years old. The rulemaking process by which they are promulgated has been a source of gloom for a generation. Like a wayward Hollywood star, the process is in “crisis” and its fans are experiencing “malaise.” This Article addresses the reasons for that gloom and concludes that some level of crisis is inevitable. At the macro level, as Professor Redish has emphasized, judicial rulemaking is a legislative function being performed by an unelected body that is constitutionally empowered only to perform the task of deciding cases and controversies. At the micro level, the Rules Advisory Committee is subject to being second-guessed by Congress, is plagued by uncertainty about the statutory limits of its power under the Rules Enabling Act, and receives inconsistent signals from the Supreme Court concerning the desirability of rulemaking versus case law development. These forces impel the Advisory Committee to avoid clashes with Congress and the Supreme Court by attending to minor matters. Instead of leading, as it is institutionally constituted to do, the Committee has become focused on wordsmithing. The result is an unjustified barrage of trifling changes that burden the bench and bar and squander opportunities to address topics meaningful to the administration of justice. Ultimately, then, the gloom attending the federal judicial rulemaking process is largely the Committee’s fault. Like the wayward star, it should change, a process that starts by understanding the burdens and costs imposed by every procedural change.

Bomb Throwing, Democratic Theory, and Basic Values—A New Path to Procedural Harmonization?

Marcus, Richard | January 1, 2013

From the beginning of his career, Marty Redish has been something of a bomb thrower, repeatedly challenging legal orthodoxy. During the last decade, democratic theory has been at the center of many of his challenges to widely accepted procedural rules. Meanwhile, American proceduralists are gradually waking up to the reality that the rest of the world handles procedure quite differently. Redish’s theoretical challenge to U.S. procedure—premised on political theory—therefore also corresponds to efforts to harmonize American procedure more closely with that of the rest of the world. But the United States remains stubbornly resistant to that harmonization, and even limited shifts in the direction Redish endorses excite very vigorous opposition. This Article recognizes the ways in which Redish’s democratic theory could lead to greater harmonization with the rest of the world, but contrasts several other political theory explanations for American exceptionalism that support retaining our current methods. It concludes by recognizing that this tension presents considerable challenges to American rulemakers.

Aggregate Litigation and the Death of Democratic Dispute Resolution

Mullenix, Linda S. | January 1, 2013

Professor Redish has anchored the modern class action in American political and constitutional theory, raising serious questions about the legitimacy of this procedural device for resolving aggregate claims. Professor Redish’s major insight is his argument that the courts and litigants have transformed the modern class action from a mere procedural device into a means for controlling and altering substantive law in ways that he considers to be highly undemocratic. Others, however, have suggested that the class action is dead. The Article surveys accounts of the death of class actions and explains the continued endurance of class litigation, which, it turns out, is hard to kill off. The Article then documents the changing landscape of aggregate dispute resolution, documenting a significant paradigm shift in the twentyfirst century towards increased use of private claims resolution mechanisms. The Article focuses on settlement classes, multidistrict litigation procedure, contractual nonclass settlements, the quasi-class action, and fund approaches to mass claim resolution. Finally, the Article critically evaluates this paradigm shift and concludes that Redish’s critique of class action litigation has even greater relevance in the new world of nonclass, aggregate claims resolution: that Professor Redish’s critique applies with even greater force in the nonclass universe. With the paradigm shift towards nonclass aggregate claims resolution, the arc of history may be bending towards greater injustice—a shift that is more significant because it is largely unbounded by rules and unmoored from judicial oversight.

Superiority as Unity

Tidmarsh, Jay | January 1, 2013

One of Professor Redish’s many important contributions to legal scholarship is his recent work on class actions. Grounding his argument in the theory of democratic accountability that has been at the centerpiece of all his work, Professor Redish suggests that, in nearly all instances, class actions violate the individual autonomy of litigants and should not be used by courts. This Essay begins from the opposite premise: that class actions should be grounded in the notion of social utility rather than autonomy so that class actions should be used whenever they achieve net social gains. This idea of “superiority” presents some difficulties, not the least of which is the capacity of a court to determine whether a class action is indeed superior to other forms of dispute resolution. The Essay proposes a series of presumptions that give effect to superiority and make an inquiry into superiority easier for courts to conduct. When the results obtained by these presumptions are examined, they do not result in the near-absolute position against class actions that Professor Redish favors, but surprising convergences in the autonomy and utility approaches emerge.

Redish on Freedom of Speech

Alexander, Larry | January 1, 2013

My contribution to this Festschrift for Marty Redish looks at two of his most important articles on freedom of speech, both published in 1982. One article deals with free speech and advocacy of crime, while the other presents Marty’s general justificatory theory of freedom of speech. Although I agree and disagree with various parts of Marty’s analysis in the former, I am unpersuaded that Marty’s general theory can succeed either positively or normatively. Marty Redish is an important scholar in several domains, displaying enviable versatility as well as depth. Although he is perhaps the leading contemporary expositor of the law of federal jurisdiction, he is almost as important a figure in the vastly more crowded field in which his and my scholarship overlap. Redish on Freedom of Speech is my modest contribution to this richly deserved Festschrift.

Value Democracy as the Basis for Viewpoint Neutrality: A Theory of Free Speech and Its Implications for the State Speech and Limited Public Forum Doctrines

Brettschneider, Corey | January 1, 2013

The doctrine of viewpoint neutrality is central to First Amendment jurisprudence. It requires the state to not treat speech differently based on a speaker’s political or philosophical opinions. The doctrine has recently come under attack, however, for protecting hate speech and other views inimical to liberal democracy. Critics note that most democracies outside of the United States have rejected the doctrine of viewpoint neutrality, while still endorsing a right to free speech. In stark contrast to these critics, Martin Redish has offered a clear and robust defense of this doctrine, which he grounds in an account of “epistemic humility.” In contrast to these positions, my theory of “value democracy” suggests a new approach to viewpoint neutrality. I suggest the doctrine rightly protects rights of people to make up their minds and speak while keeping them free from the threat of coercive punishment. I add, however, that the state has an obligation to use its expressive capacities to defend the values that underlie these rights and to criticize expressions of hate that oppose them. Value democracy therefore highlights two aspects of free speech. First, it develops an account of how the values of free and equal citizenship— autonomy and equal respect—ground the doctrine of viewpoint neutrality. To respect the equal autonomy of citizens, the state should not coercively ban hate speech. Second, it articulates an expressive role for the state in defending the values of free and equal citizenship. The state should defend these values by criticizing hate speech and other viewpoints that seek to undermine the freedom and equality of citizens. Using its expressive capacity, the state can respect rights at the same time that it checks the spread of illiberal viewpoints, thus avoiding complicity with the hate speech it protects. I suggest, moreover, how value democracy can help us to rethink the First Amendment doctrines of the “limited public forum” and “state speech,” as presented in Bob Jones University v. United States, Rust v. Sullivan, National Endowment for the Arts v. Finley, and Christian Legal Society Chapter of the University of California, Hastings College of the Law v. Martinez.

Veil of Ignorance: Tunnel Constructivism in Free Speech Theory

Koppelman, Andrew | January 1, 2013

Modern free speech theory is dominated in the courts and the academy alike by a constructivist style of reasoning: it posits a few axiomatic purposes of speech and from these deduces detailed rules of law. This way of thinking can make the law blind to the actual consequences of legal rules and damage both individual liberty and democracy. I develop this claim through a critique of the work of Martin Redish, who has developed the most sustained and sophisticated constructivist theory of free speech. Free speech constructivism is not the only way to understand the First Amendment. It is a fairly recent development, emerging only in the 1970s. The idea of free speech, on the other hand, dates back to Milton’s arguments in the 1640s. This Article identifies the pathologies of constructivism and recovers an older, more attractive free speech tradition.

One-to-One Speech vs. One-to-Many Speech, Criminal Harassment Laws, and “Cyberstalking”

Volokh, Eugene | January 1, 2013

Until recently, criminal “harassment” usually referred to telephone harassment—unwanted communications to a particular person. Likewise, stalking laws were originally created to deal with people who were physically following a person or trying to talk to that person. The same has historically been true with regard to restraining orders. But in recent years, these laws have been increasingly reworded or interpreted in ways that also cover speech about a person, even when that speech is communicated to potentially willing listeners. The law is in effect returning to an era when criminal libel laws could impose liability not just for falsehoods, but also for true statements or opinions that were supposedly not said with “good motives.” This Article will argue that this approach is unconstitutional when applied to speech said about the target rather than just to the target, at least when the speech is outside the traditional First Amendment exceptions (chiefly threats and “fighting words,” plus perhaps libel). Courts should therefore reject the application of these laws to such one-to-many speech, and legislatures should resist the broadening of such laws.

Hacking Speech: Informational Speech and the First Amendment

Matwyshyn, Andrea M. | January 1, 2013

The Supreme Court has never articulated the extent of First Amendment protection for instructional or “informational” speech—factual speech that may be repurposed for crime. As technology advances and traditional modes of speech become intertwined with code speech, crafting a doctrine that expressly addresses the First Amendment limits of protection for informational speech becomes pressing. Using the case study of “vulnerability speech”—speech that identifies a potentially critical flaw in a technological system but may indirectly facilitate criminality—this Article proposes a four-part “repurposed speech scale” for crafting the outer boundaries of First Amendment protection for informational speech.

Why Abstention Is Not Illegitimate: An Essay on the Distinction Between “Legitimate” and “Illegitimate” Statutory Interpretation and Judicial Lawmaking

Fallon, Richard H., Jr. | January 1, 2013

When Professor Martin Redish condemned abstention doctrines as violating norms of “institutional legitimacy,” he provoked an informative debate, but one that has largely subsided. This Essay revisits the once-heated debate about abstention’s legitimacy, clarifies its terms, and identifies its stakes. The legitimacy question is not whether abstention decisions are legally correct, but whether applicable statutes and the Constitution render such decisions ultra vires. Most often, the answer to that question is no. Recent versions of both textualist and purposivist theories of statutory interpretation recognize that statutory meaning always depends on “context.” And when relevant statutes are read in a sufficiently capacious semantic context (as textualists would insist) or policy context (as purposivists would demand), abstention emerges as justified in some cases. Indeed, if abstention were illegitimate, then a number of other federal courts doctrines—many of which are difficult to justify by reference either to the language of pertinent statutes or to Congress’s most pressing purposes in enacting them—would be illegitimate also.

Abstention, Separation of Powers, and Recasting the Meaning of Judicial Restraint

Marshall, William P. | January 1, 2013

In his 1984 landmark article, Abstention, Separation of Powers, and the Limits of the Judicial Function, Professor Martin H. Redish advanced the thesis that the abstention doctrines constituted a violation of separation of powers. Redish’s theory was, and is, controversial. The suggestion that an embedded area of federal courts law is unconstitutional is, at the least, highly provocative. It is also ultimately unpersuasive. There are too many justifications underlying the legitimacy of abstention to support the conclusion that it violates the Constitution. Yet, as this Essay demonstrates, one does not have to be persuaded by Redish’s constitutional conclusion to appreciate the landmark significance of his project. Prior to Abstention, Separation of Powers, and the Limits of the Judicial Function, the virtues of judicial restraint had been reflexively characterized as judicial deference to the decisions of political actors. Professor Redish, however, replaced this understanding with the more nuanced view that judicial restraint might also mean courts performing the tasks to which they were assigned. In so doing, Redish fundamentally recast the debate as to the proper understanding of the role and obligations of the federal judiciary and the meaning of judicial activism and judicial restraint.

A Jurisdictional Perspective on New York Times v. Sullivan

Wasserman, Howard M. | January 1, 2013

New York Times v. Sullivan, arguably the Supreme Court’s most significant First Amendment decision, marks its fiftieth anniversary next year. Often overlooked in discussions of the case’s impact on the freedom of speech and freedom of the press is that it arose from a complex puzzle of constitutional, statutory, and judge-made jurisdictional and procedural rules. These kept the case in hostile Alabama state courts for four years and a half-million-dollar judgment before the Times and its civilrights-leader co-defendants finally could avail themselves of the structural protections of federal court and Article III judges. The case’s outcome and the particular First Amendment rules it established are a product of this jurisdictional and procedural background. Martin H. Redish has produced a lengthy record of influential and cutting-edge scholarship on civil procedure, federal jurisdiction, and the First Amendment, and has been a sharp and unforgiving critic of many of the jurisdictional rules that kept the case out of federal court for so long. It is appropriate to recognize Redish’s scholarly legacy by examining this landmark case, which sits at the intersection of his three scholarly pursuits and demonstrates why many of his arguments and criticisms are precisely correct.

A Great Scholar and a Great Man

Arnould, Matthew B. | January 1, 2013

Remarks in honor of Northwestern Law Professor Martin H. Redish for the occasion of the Festschrift in his honor held on March 30, 2012.

The Corporate Right to Speak Freely About Macho Federalist Tensions in Times of Political Repression: What Every Venusian Should Know

Gavil, Andrew I. | January 1, 2013

Remarks in honor of Northwestern Law Professor Martin H. Redish for the occasion of the Festschrift in his honor held on March 30, 2012.

In Class with Marty from Highland Park

Yoo, Christopher S. | January 1, 2013

Remarks in honor of Northwestern Law Professor Martin H. Redish for the occasion of the Festschrift in his honor held on March 30, 2012.

Notes and Comments

The Cyber-Samaritans: Exploring Criminal Liability for the “Innocent” Bystanders of Cyberbullying

Benzmiller, Heather | January 1, 2013

In recent years, the media have consistently documented the stories of teens who committed suicide or otherwise suffered severe physical and psychological harm following periods of vitriolic cyberbullying. While legislators and scholars have proposed several solutions to combat cyberbullying, none have drawn on the work of social psychologists to address the role that witnesses play in escalating bullying. This Note proposes that the witnesses of cyberbullying be held liable under a “Bad Samaritan” law for failing to report the most severe forms of bullying where the witness reasonably believes the victim will suffer physical harm. Drawing on the justifications for classic Samaritan laws in both civil and common law jurisdictions, the Note suggests that a wellpublicized duty to report cyberbullying would undermine teens’ general reluctance to report such abuse and provide the means for adults to intervene to assist victims. Cyberbullying harms countless children, both physically and emotionally; a complete response to the problem must hold responsible not only the bully, but also the bystanders who, through their silence, contribute to the bully’s power and the victim’s isolation.

The Presidential Role in the Constitutional Amendment Process

Joshi, Sopan | January 1, 2013

The President should have the power to veto constitutional amendment proposals. After all, Article I, Section 7 of the Constitution provides that “[e]very Order, Resolution, or Vote” requiring “the Concurrence” of both houses of Congress must be “presented to the President” for approval or veto. Constitutional amendment proposals unmistakably require the concurrence of both houses of Congress (by twothirds majorities, no less). Yet all three branches of the federal government, with varying degrees of consistency, have decided that constitutional amendment proposals need not be presented to the President. I argue that Article V, which defines the amendment process, is bound by Article I, Section 7’s strictures and the President is thus empowered to veto congressional amendment proposals as both a textual and a normative matter. Recognizing the implications of this conclusion, I propose broad definitions of presentment and approval to rescue the validity of the existing twenty-seven amendments while requiring all future constitutional amendment proposals to be presented to the President for approval or veto.

Distressing Speech After Snyder—What’s Left of IIED?

Meerkins, Andrew | January 1, 2013

Speech has the potential to cause devastating emotional injury. Yet it has been less than a century since intentional infliction of emotional distress—a tort designed to punish a person who, through outrageous conduct or speech, intentionally causes severe distress to another—has entered the scene. When the tortfeasor acts through speech alone, the First Amendment is inevitably implicated. In 2011, the Supreme Court took its most recent stance on the constitutionality of punishing distressing speech when it decided Snyder v. Phelps. Despite the reprehensibility of the speech involved, the Court properly immunized the speech from tort liability for emotional distress. The Court has already suggested that IIED actions face a constitutional bar for public figures and for private figures embroiled in a matter of public concern. This Note picks up the IIED doctrine where Snyder left off and argues that the First Amendment should bar most IIED actions even against a private figure where the speech relates to a matter of private concern. This result flows from the difficulty in distinguishing between public and private matters, the danger of silencing unpopular speech, and the positive value that injurious speech can have.

Online Essay

Affirmative Action, Justice Kennedy, and the Virtues of the Middle Ground

Rostron, Allen | January 1, 2013

When the Supreme Court heard arguments in October about the constitutionality of affirmative action policies at the University of Texas, attention focused once again on Justice Anthony Kennedy. With the rest of the Court split between a bloc of four reliably liberal jurists and a cadre of four conservatives, the spotlight regularly falls on Justice Kennedy, the swing voter that each side in every closely divided and ideologically charged case desperately hopes to attract. Critics condemn Justice Kennedy for having an unprincipled, capricious, and selfaggrandizing style of decisionmaking. Though he is often decisive in the sense of casting the crucial vote that determines a case’s outcome, his opinions can be maddeningly indecisive in the sense of failing to establish clear rules of law. Yet in Fisher v. University of Texas, Justice Kennedy’s irresolute nature may prove to be a blessing. By taking a middle-ground position that significantly sharpens judicial scrutiny of affirmative action programs but does not absolutely bar them, Justice Kennedy can finesse the issue in a way that accommodates the American public’s conflicted feelings about racial preferences, but simultaneously forces everyone to start thinking more seriously about how racial components of affirmative action can be phased out in a manner that will minimize disruption and bitterness.