Engage Volume 9, Issue 3, October 2008

November 7, 2008

The October 2008 issue of Engage is now online. Engage provides original scholarship on current, important legal and policy issues. Through its publication, we aim to contribute to the marketplace of ideas in a way that is collegial, measured, and insightful—and hope to spark a higher level of debate and discussion than is all too often found in today’s legal community. [Read now!]

Class Action Watch October 2008

November 7, 2008

In this issue of Class Action Watch, William E. Thomson and Kahn A. Scolnick look at the new punitive damage limits as set by the U.S. Supreme Court. Jim Copland reports on "the largest class-action lawsuit ever filed in America." Jimmy Cline talks about a recent holding by the Arkansas Supreme Court that potential conflicts of law cannot defeat class certification. Laurel Harbour reviews a New Jersey Supreme Court holding that rejected medical monitoring in product liability claims. Lyle Roberts discusses the selection of lead plaintiff and lead counsel in securities class actions. Mark A. Behrens and Frank Cruz-Alvarez report on the Rhode Island Supreme Court rejecting public nuisance claims. And Andrew M. Grossman comments on the Grand Theft Auto class action. [Read now!]

The North Carolina Supreme Court: A Special Issue Report

October 21, 2008

The 2008 election campaigns are in full force in North Carolina. The airwaves abound with advertisements for President, Governor, United States Senate, and various other state offices. Amidst all of the media attention devoted to these important executive and legislative positions, it is easy to forget about the third branch in our state democratic system—the judiciary. Unlike their federal counterparts on the United States Supreme Court, who are nominated by the President and confirmed by the Senate, North Carolina Supreme Court Justices are elected. On November 4, 2008, North Carolina voters will elect one Justice to an eight year term on the North Carolina Supreme Court. Moreover, because North Carolina Supreme Court elections became non-partisan in 2002, North Carolina voters will elect the next state supreme court Justice without political party affi liations of the judicial candidates on the ballot.

Alabama Supreme Court Justice Harold See: His Twelve-Year Legacy

October 14, 2008

Alabama Supreme Court Justice Harold See’s decision not to seek a third term means that a staunch proponent of the philosophy of judicial restraint will be gone after January 2009. Whether interpreting statutes, constitutions, private contracts, common law, or the Alabama Supreme Court’s own rules, Justice See’s opinions show a pattern of applying preexisting rules when interpreting cases. This is the case even when the result is to markedly decrease the power of the court. The growth in judicial restraint on the Alabama Supreme Court has been identified by some as having reduced the incidence of novel and unexpected approaches to tort liability, which prompted a few multinational companies, such as Mercedes, Hyundai, Honda, and ThyssenKrupp, to establish a presence in the state.

The Supreme Court of Texas: A Balanced Court

October 14, 2008

The Supreme Court of Texas has come through a period of rapid transition, and what some have called the court’s “conservative counterrevolution” certainly has not ended with the departure of its leader, Chief Justice Thomas R. Phillips, who retired from the Court in 2004. The court has set about establishing a consistent, moderately conservative approach that resists expansion of novel causes of action and theories of liability, while continuing to prune some of the precedents established during the previous era.

Michigan's Big Four: An Analysis of the Modern Michigan Supreme Court

October 7, 2008

In May 2000, the Wall Street Journal featured an update on the Michigan Supreme Court that praised the court’s majority as “unusually thoughtful, sophisticated, and articulate.” In October 2005, a Wall Street Journal column referred to the court as “The Finest Court in the Nation.” More recently, in November 2007, Human Events labeled the majority “the gold standard” for state judges. These commentaries are follow-ups to other articles that have generously identified the Michigan Supreme Court as a national leader in sound reasoning and judicial restraint. Alternatively, the court has been the source of criticism for abandoning long-standing judicial doctrines. For example, The Detroit Free Press chided the Michigan Supreme Court for abandoning the “absurd result” doctrine, which “discouraged [judges] from enforcing laws adopted by the Legislature if to do so would produce an ‘absurd result.’” Still, there is broad agreement among conservative legal scholars that Michigan’s highest court has greatly advanced the delicate art of being faithful to the law while, at the same time, giving respect for the proper balance between the branches of government and the rights of the people.

The Modern California Supreme Court: Progressivism and Practical Constraints

October 6, 2008

The California Supreme Court decides legal issues affecting a population of more than 30 million people, spread across 156,000 square miles, all from an enormous variety of backgrounds, with widely different political and cultural views. In addition to its array of different ideologies and interests, California’s political culture is strongly rooted in an old-fashioned Progressivism. Although like many states, its urban centers are marked by the legacy of 1960s radicalism while its rural counties remain socially conservative, this difference is more apparent than real. Progressivism was founded on replacing liberty, once the fundamental constitutional value, with collective decision-making. The Progressives were decidedly to the left on matters of economic liberty and private property, but sometimes conservative on matters involving morality, marriage and family.

Should We Keep this Court? An Economic Examination of Recent Decisions Made by the West Virginia Supreme Court of Appeals

October 6, 2008

There has been much discussion lately about whether West Virginia’s economy could be bolstered by adopting various initiatives aimed at improving its business climate. While people tend to associate a state’s business climate with factors such as corporate taxes and regulations, the legal and judicial system is also an important element in determining the relative attractiveness of a state to business location and growth. State court rulings have significant effects not only on the cost of doing business in a state, but also on the predictability and risk associated with operating a business. The state’s business climate directly affects the decisions of companies whether to create new jobs here or somewhere else. In this study we examine some of the most important cases that have confronted the current West Virginia Supreme Court of Appeals, whose membership has been in place since 2005.

A More Modest Court: The Ohio Supreme Court's Newfound Judicial Restraint

September 29, 2008

The Ohio Supreme Court has changed significantly over the past six years.  Significant turnover on the court has produced significant change in the court’s approach to many legal issues, in particular the degree of deference shown to legislatively enacted policies.  Whereas the court of the 1990s developed a reputation for aggressively intervening in controversial policy matters, the current court is far more restrained, consistently applying a presumption of constitutionality to legislative enactments. The current court is also largely unsympathetic to new and innovative tort claims or cases that seek judicial revision of existing rules or statutes to facilitate plaintiffs’ actions.