Faculty Bibliography
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The Trump Administration’s effort to get rid of the Obama Administration’s Deferred Action for Childhood Arrivals program, or DACA, failed before the Supreme Court in Department of Homeland Security v. Regents of the University of California. In this essay—adapted from a presentation given to an American Bar Association section in September 2020—Brian Wolfman reviews DACA, the Supreme Court’s decision, and its administrative-law implications. The failure of the Trump Administration to eliminate DACA may have had significant political consequences, and it surely had immediate and momentous consequences for many of DACA’s hundreds of thousands of beneficiaries. In the aftermath of the Court’s decision, some commentators noted, however, that the Supreme Court’s ruling it is not a major legal landmark—that it involves only the application of settled administrative-law principles. Wolfman largely agrees. Nonetheless, the decision’s administrative-law holdings are interesting, and the Court’s ruling contains several of what Wolfman sees as “extras”—little nuances that may affect the law over time and that should interest administrative-law nerds. This essay reviews those “extras” too.
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The authors state that the U.S. Supreme Court’s preemption ruling in Mutual Pharmaceutical Co. v. Bartlett, which generally shields generic drug manufacturers from state-law damages liability for design-defect claims, may also have broader implications for preemption jurisprudence. In this article they describe the Supreme Court’s decision in Mutual and evaluate how it may affect future products-liability litigation. Part I provides an overview of the case’s factual background and of federal generic drug regulation, while Part II discusses the Court’s majority opinion and the dissents. Part III analyzes the implications of the decision, offering ideas on how plaintiffs injured by defective or mislabeled generic prescription drugs may seek compensation after Mutual and how federal regulators and Congress may respond. Part III also briefly assesses Mutual’s potential impact on federal preemption doctrine.
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I represent a national non-profit consumer rights organization, as an amicus, in a federal appeal challenging a district court’s approval of a class-action settlement of claims under the federal Credit Repair Organization Act (CROA). My client maintains that the district court erred in finding that the settlement was “fair, reasonable, and adequate,” which is the standard for class-action settlement approval under the Federal Rules of Civil Procedure. In particular, we argue that the district court committed a reversible legal error when it deferred to the class-action lawyers’ recommendation to approve the settlement because, in those lawyers’ view, it was fair, reasonable, and adequate. We also argue that the district court erred when, in approving the settlement, it relied in part on its belief that the plaintiffs’ counsel, whose work the judge had observed for years, are really good lawyers.
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Brian Wolfman & Alan B. Morrison, What the Shutts Opt-Out Right is and What It Ought to Be, 74 UMKC L. Rev. 729 (2006).
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This article discusses the ramifications of the U.S. Supreme Court's decision in Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985), regarding the right of an absent class member to opt out of a class action. The article addresses both the current prevailing understanding of Shutts, which is based on the personal jurisdiction strain of due process jurisprudence, and what the authors believe is a more useful understanding, based on the property rights strain of due process jurisprudence. As an addendum to the article, the authors propose a new civil procedure rule governing class actions that would implement their ideas about opt-out rights and class action governance more generally.