Professor Ben Spencer Publishes Article on Walmart v. Dukes

Prof. Benjamin Spencer

W&L Law Professor A. Benjamin Spencer just published an article entitled Class Actions, Heightened Commonality, and Declining Access to Justice in the Boston University Law Review.  Here is the abstract:

A prerequisite to being certified as a class under Rule 23 of the Federal Rules of Civil Procedure is that there are “questions of law or fact common to the class.” Although this “commonality” requirement had heretofore been regarded as something that was easily satisfied, in Wal-Mart Stores, Inc. v. Dukes the Supreme Court gave the requirement new vitality by reading into it an obligation to identify among the class a common injury and common questions that are “central” to the dispute. Not only is such a reading of Rule 23’ s commonality requirement unsupported by the text of the rule, but it also is at odds with the historical understanding of commonality in both the class action and joinder contexts. The Court’s articulation of a heightened commonality standard can be explained by a combination of its negative view of the merits of the discrimination claims at issue in Dukes, the conflation of the predominance requirement with commonality, and the Court’s apparent penchant for favoring restrictive interpretations of procedural rules that otherwise promote access. Although an unfortunate consequence of the Dukes Court’s heightening of the commonality standard will be the enlivening of challenges to class certifications that would otherwise never have been imagined, this Article urges the Court to reject heightened commonality and read Rule 23 in a manner that remains true to the language and history of the common question requirement.

This article may be downloaded by visiting the BU Law Review website.

Honors for Professor Ben Spencer

Prof. Benjamin Spencer

Washington and Lee School of Law Professor Benjamin Spencer, Associate Dean for Research and Director of the Frances Lewis Law Center,  has received two honors recognizing his professional accomplishments and standing within the legal academy.

First, Prof. Spencer has been elected to the American Law Institute (ALI), the most prestigious law reform body in the U.S. The ALI is focused on producing scholarly work to clarify, modernize, and otherwise improve the law. It has a membership 4300 judges, lawyers, and teachers from all areas of the U.S. and many foreign companies.

Also, Prof. Spencer has been appointed by the President of the National Conference of Bar Examiners to the Civil Procedure Drafting Committee, which consists of 6 people who will write the civil procedure questions that appear on the Multistate Bar Exam (MBE). Civil Procedure is currently not tested on the MBE but will be beginning in 2016. Prof. Spencer will meet with the other committee members every six months as they prepare for the inclusion of this subject on the MBE.

Congratulations to Prof. Spencer on these honors.

Professor Spencer Publishes Article on the History of Legal Education Reform

Prof. Spencer

W&L Law Professor A. Benjamin Spencer, Associate Dean for Research and Director of the Frances Lewis Law Center, has just published an article entitled The Law School Critique in Historical Perspective, 69 Wash. & Lee L. Rev. 1949 (2012).  This article provides an extensive review of the history of legal education and legal education reform up to the present day, gleaning lessons along the way for how we might address contemporary challenges facing law schools.  Here is the abstract:

Contemporary critiques of legal education abound. This arises from what can be described as a perfect storm: the confluence of softness in the legal employment market, the skyrocketing costs of law school, and the unwillingness of clients and law firms to continue subsidizing the further training of lawyers who failed to learn how to practice in law school. As legal jobs become increasingly scarce and salaries stagnate, the value proposition of law school is rightly being questioned from all directions. Although numerous valid criticisms have been put forth, some seem to be untethered from a full appreciation for how the current model of legal education developed. Indeed, a historical perspective on legal education is sorely missing from this debate, as many of the criticisms merely echo charges that have been lodged against legal education for well over a century, but do not draw lessons from how those former critiques ultimately failed to deliver fundamental change. This Article reviews the historical development of legal education in America, including the critiques and reforms made along the way, to gain insight that will inform our own efforts to make law schools better at preparing lawyers for practice.

This article, which was published in the Washington & Lee Law Review, may be downloaded from SSRN by visiting http://ssrn.com/abstract=2017114.

Professor Spencer Appears in the Virginia Lawyer Magazine in an Issue Dedicated to Legal Education

Professor A. Benjamin Spencer is featured in the October 2012 issue of the Virginia Lawyer, the official publication of the Virginia State Bar.  Professor Spencer appears in his capacity as Chair of the VSB Section on the Education of Lawyers.  In the magazine, Professor Spencer introduces the issue, which is dedicated to coverage of the recent Twentieth Anniversary Conclave on the Education of Lawyers in Virginia.

The 2012 Conclave, which was put on by the Section that Professor Spencer chairs, was a meeting of members of the bench, bar, and legal academy to discuss the challenges facing legal education and how we can work together to tackle them.  The panel discussions focused on education during law school, the bar admissions process, continuing legal education beyond law school, and the role of judges in improving the training and preparation of lawyers for practice.

For more details regarding the substance of the 2012 Conclave or to read each of the reports that came out of the event, visit the Virginia Lawyer Web page.  Complete Conclave materials, including transcripts, DVDs, and written materials for the event are available at a dedicated website: http://www.vsb.org/site/members/20th-anniversary-conclave.

A. Benjamin Spencer is the Associate Dean for Research and a Professor of Law at Washington & Lee University School of Law, where he also serves as Director of the Frances Lewis Law Center.

New W&L Faculty Papers at SSRN

Several new papers by W&L faculty are available for download from SSRN, including articles by professors Benjamin Spencer, Christopher Seaman, Christopher Bruner and Joshua Fairfield. Titles and abstracts are below:

Avatar Experimentation: Human Subjects Research in Virtual Worlds
Tue, 07 Aug 2012 | Joshua A.T. Fairfield
Researchers love virtual worlds. They are drawn to virtual worlds because of the opportunity to study real populations and real behavior in shared simulated environments. The growing number of virtual worlds and population growth within virtual worlds has led to a sizeable increase in the number of human subjects experiments taking place in such worlds. Virtual world users care deeply about their avatars, their virtual property, their privacy, their relationships, their community, and their accounts. People within virtual worlds act much as they would in the physical world because the experience of the virtual world is “real” to them. The very characteristics that make virtual worlds attractive to researchers complicate ethical and lawful research design. The same principles govern research in virtual worlds and the physical world. However, the change in context can cause researchers to lose sight of the fact that virtual world research subjects may suffer very real harm to property, reputation, or community as the result of flawed experimental design. Virtual world research methodologies that fail to consider the validity of users’ experiences risk harm to research subjects. This Article argues that researchers who put subjects’ interests in danger run the risk of violating basic human subjects research principles. Although hundreds of articles and studies examine virtual worlds, none have addressed the interplay between the law and best practices of human subjects research in those worlds. This Article fills that gap. Virtual worlds are valuable research environments precisely because the relationships and responses of users are measurably real. This Article concludes that human subjects researchers must protect the very real interests of virtual worlds inhabitants in their property, community, privacy, and reputations.

Conceptions of Corporate Purpose in Post-Crisis Financial Firms
Wed, 01 Aug 2012 | Christopher M. Bruner
American “populism” has had a major impact on the development of U.S. corporate governance throughout its history. Specifically, appeals to the perceived interests of average working people have exerted enormous social and political influence over prevailing conceptions of corporate purpose – the aims toward which society expects corporate decision-making to be directed. This essay assesses the impact of American populism upon prevailing conceptions of corporate purpose – contrasting its unique expression in the context of financial firms with that arising in other contexts – and then examines its impact upon corporate governance reforms enacted in the wake of the financial and economic crisis that emerged in 2007. I first explore how populism has historically shaped conceptions of corporate purpose in the United States. While the “employee” conceptual category best encapsulates the perceived interests of average working people in the non-financial context, the “depositor” conceptual category best encapsulates their perceived interests in the financial context. Accordingly, American populism has long fostered strong emphasis on the interests of bank depositors, resulting in striking corporate architectural strategies aimed at reducing risk-taking to ensure firm sustainability – notably, imposing heightened fiduciary duties on directors and personal liability on shareholders. I then turn to the crisis, arguing that growing shareholder-centrism over recent decades goes a long way toward explaining excessive risk-taking in financial firms – a conclusion rendering post-crisis reforms aimed at further strengthening shareholders a surprising and alarming development. While populism has remained a powerful political force, it has expressed itself differently in this new environment, fueling a crisis narrative and corresponding corporate governance reforms that not only fail to acknowledge the role of equity market pressures toward excessive risk-taking in financial firms, but that effectively reinforce such pressures moving forward. I conclude that potential corporate governance reforms most worthy of consideration include those aimed at accomplishing precisely the opposite, which may require resurrecting corporate architectural strategies embraced in the past to reduce risk-taking in financial firms. As a threshold matter, however, we must first grapple effectively with a more fundamental and pressing social and political problem – the popular misconception that financial firms exist merely to maximize stock price for the short-term benefit of their shareholders.

Best Mode Trade Secrets
Fri, 27 Jul 2012 | Christopher B. Seaman
Trade secrecy and patent rights traditionally have been considered mutually exclusive. Trade secret rights are premised on secrecy. Patent rights, on the other hand, require public disclosure. Absent a sufficiently detailed description of the invention, patents are invalid. However, with the passage of the Leahy-Smith America Invents Act (“AIA”) last fall, this once black-and-white distinction may melt into something a little more gray. Now, an inventor’s failure to disclose in her patent the preferred method for carrying out the invention — the so-called “best mode” — will no longer invalidate her patent rights or otherwise render them unenforceable. In this Essay, we explain why it may become routine post-patent reform for patentees to attempt to assert both patent rights and trade secret rights for preferred embodiments of their invention in certain types of cases. We also consider potentially undesirable ramifications of this change and suggest one approach courts may use to limit claims of concurrent trade secret and patent protection when equity demands.

Class Actions, Heightened Commonality, and Declining Access to Justice
Fri, 20 Jul 2012 | A. Benjamin Spencer
A prerequisite to being certified as a class under Rule 23 of the Federal Rules of Civil Procedure is that there are “questions of law or fact common to the class.” Although this “commonality” requirement had heretofore been regarded as something that was easily satisfied, in Wal-Mart Stores, Inc. v. Dukes the Supreme Court gave it new vitality by reading into it an obligation to identify among the class a common injury and common questions that are “central” to the dispute. Not only is such a reading of Rule 23’s commonality requirement unsupported by the text of the rule, but it also is at odds with the historical understanding of commonality in both the class action and joinder contexts. The Court’s articulation of a heightened commonality standard can be explained by a combination of its negative view of the merits of the discrimination claims at issue in Dukes, the conflation of the predominance requirement with commonality, and the Court’s apparent penchant for favoring restrictive interpretations of procedural rules that otherwise promote access. Although an unfortunate consequence of the Dukes Court’s heightening of the commonality standard will be the enlivening of challenges to class certifications that otherwise would never have been imagined, this Article urges the Court to reject heightened commonality and read Rule 23 in a manner that remains true to the language and history of the common question requirement.

Prof. Spencer on Judicial Power

Professor A. Benjamin Spencer had his article, The Judicial Power and the Inferior Federal Courts, 46 Ga. L. Rev. 1 (2011), published in the Georgia Law Review.

The article discusses the third branch of the federal government, the Judiciary, which traditionally has been viewed as the least of the three branches in terms of the scope of its power and authority. The Supreme Court has permitted Congress to exercise authority over the Federal Judiciary, including the limitation of jurisdiction of inferior federal courts, without much thought or explanation.

Professor Spencer argues that it may be possible to imagine a more robust vision of the Judicial Power through closer scrutiny of the history and text of Article III of the U.S. Constitution. The Constitution vests Judicial Power of the United States exclusively in “one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” In the article, Prof. Spencer reviews historical evidence that reveals that delegates to the Federal Convention considered and rejected language that would have given Congress express authority to manipulate the jurisdiction of inferior federal courts. The article argues that this fact, coupled with repeated indications by the Framers and by the delegates to state ratifying conventions that the independence of the Judicial Branch from each of the other branches was of paramount importance, may give some weight to an understanding of the Judicial Power that challenges—or at least may moderate—our understanding of Congress’s authority to withhold from the inferior federal courts some portion of the Judicial Power vested in them under Article III.

Prof. Spencer on Ashcroft v. Iqbal

Professor A. Benjamin Spencer had his article, Iqbal and the Slide Toward Restrictive Procedure, 14 Lewis & Clark L. Rev. 185 (2010), published in the Lewis & Clark Law Review.

The article addresses the Supreme Court case, Ashcraft v. Iqbal, where the Court affirmed its commitment to more stringent pleading standards for the ordinary federal civil case. Prof. Spencer finds two disconcerting elements in Iqbal. First, he claims the Court treated Iqbal’s factual allegations in a manner that erodes the assumption-of-truth rule that has been the cornerstone of modern federal civil pleading practice. Thus, judges may exercise their own subjective, malleable standards to reject pleadings based on their own predilections or “experience and common sense.” Second, Prof. Spencer finds that the Court struck a blow against the liberal ethos in civil procedure by endorsing pleading standards that will make it increasingly difficult for members of societal out-groups to challenge the unlawful practices of dominant interests such as employers, government officials, or major corporations. Ultimately, Prof. Spencer concludes that Iqbal is “an important milestone in the steady slide toward restrictiveness that has characterized procedural doctrine in recent years.”

Professor Spencer’s article can be found here.

New York Bar Debates A. Benjamin Spencer’s Proposed FRCP 37(e) Revision

Last year, Professor A. Benjamin Spencer wrote an article that has been published in the Fordham Law Review titled The Preservation Obligation: Regulating and Sanctioning Pre-Litigation Spoliation in Federal Court, 79 Fordham L. Rev. 2005 (2011). In the article, Professor Spencer proposed a change to Rule 37(e) of the Federal Rules of Civil Procedure (FRCP). The amendment would clarify pre-litigation preservation obligations and allow a prospective litigant to petition the court for a preservation order before actually filing suit.

Last week, the New York State Bar Association met for its annual meeting. One of the panels, titled “Bridging the E-Discovery Gap Between Bench and Bar” discussed the issue of preservation and, more specifically, Professor Spencer’s proposed amendment. The panel of nine included five sitting judges in New York.

This is an upcoming and interesting debate that will only become more relevant in this age of digital communication and information. Congratulations to Professor Spencer for being at the forefront of the issue.

To read Professor Spencer’s article, you can go to the SSRN website or the Fordham Law Review here.

To read articles about the panel, you can click here or here.