Reverse Erie and Texas Rule 202: The Federal Implications of Texas Pre-suit Discovery

Jeffrey Liang

89 Texas L. Rev. 1491

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Under current federal pleading standards for civil actions, Mr. Liang writes that “plaintiffs face a catch-22: they need information to reach discovery, but they need discovery to access information.”  He argues that Texas Rule of Civil Procedure 202 (Rule 202) may offer a solution.  Rule 202 allows plaintiffs to conduct pre-suit depositions in order to investigate potential claims.  Subsequently, the plaintiff could file suit in federal or state court, better positioned to meet pleading standards.

Only Texas grants broad pre-suit discovery for the investigation of potential claims, notes Liang.  This encourages forum shopping, which undermines the uniformity of federal pleading standards. But plaintiffs face two hurdles when using Rule 202 to investigate potential federal claims.  On the one hand, they must keep proceedings out of federal court, where such a proceeding will likely be dismissed.  On the other, they must prevent preemption in state court.

In discussing Rule 202 and its federal implications, Liang first provides an overview of its scope and role in Texas courts.  He discusses the goals of Rule 202, the mechanics of Rule 202 proceedings, and the role of pre-suit depositions in the federal system.  Next, Liang examines the obstacles presented by federal courts and the removability of Rule 202 proceedings.

He then assesses whether Rule 202 will be preempted in state court.  Even though generally not removable, a Rule 202 proceeding might be preempted through the Reverse Erie Doctrine.  This is a federal common law doctrine that applies when state courts adjudicate federal claims, and determines whether federal or state procedure applies in such instances.  Liang argues that this Doctrine will generally not preempt Rule 202, but preemption may result when Rule 202 petitions explicitly rely on federal claims to justify the burdens of pre-suit depositions.  Even though it is a state procedure, Rule 202 can have an outcome-determinative effect on cases in federal court.  Rule 202, concludes Liang, offers plaintiffs a powerful tool, and it presents courts with interesting questions of federalism, jurisdiction, and preemption.

Amicus Briefs and the Sherman Act: Why Antitrust Needs a New Deal

Rebecca Haw

89 Texas L. Rev. 1247

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Currently, the courts sort out the details of what practices and pricing schemes amount to unreasonably anticompetitive behavior, and the Supreme Court has the final word on the Sherman Act’s meaning.  Yet, the Sherman Act is so vague and broad that developing specific rules under it is more like constitutional interpretation than statutory interpretation.  However, Sherman Act interpretation is different from typical common law questions.  It requires economic evidence, which the Court cannot gather on its own, and technical economic savvy, which the Court similarly lacks.  Instead, the Court looks to amicus briefs for assistance, which have considerable influence over its opinions.  So, by relying heavily on arguments from nonparties, the Court acts more like an administrative agency soliciting third-party input.

In this Article, Haw argues that instead of requiring the Court to approximate agency decision-making in this way, an antitrust agency should be created and given the authority to make Sherman Act rules.  Such an agency would have the advantage of economic expertise and would be accountable according to judicial review.

Haw first summarizes the history of amicus participation and the justifications for it in technical areas of the law.  She then shows that in relying on amici, the Court acts similar to an agency.  Next, she details the similarities and important differences between the Court and a proper rulemaking agency.

In light of this contrast, Haw argues that the Court’s hybrid solution loses some of the benefits of Article III’s cases and controversies requirement, while failing to fully realize the benefits of APA rulemaking.  She then provides a recent pair of examples of the Court’s rulemaking in antitrust cases.  In these, the Court made mistakes partially attributable to reliance on amicus briefs for economics.

With this background, Haw proposes that an agency should instead be endowed with norm-creation authority over antitrust policy.  Where amicus briefs fail, she argues, administrative procedures are more likely to succeed.

When the Government Is the Controlling Shareholder

Marcel Kahan & Edward B. Rock

89 Texas L. Rev. 1293

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After the recent bailouts, the U.S. government has become the controlling shareholder of some major U.S. corporations.  Corporate law provides rules to protect non-controlling shareholders from controlling shareholders who have goals other than maximizing firm value.  In this Article, the authors address how corporate law applies when the government is the controlling shareholder, including the extent to which federal “public law” structures substitute displaced state “private law” norms.

The authors first review recent events during which the U.S. Treasury invested in private firms.  Next, the authors examine the challenges posed to the existing structure of legal regulation of controlling shareholders when the U.S. Treasury is the controlling shareholder.  This requires an examination of sovereign immunity and its exceptions, as developed in the FTCA, the Tucker Act, and the APA.  Then, the authors address ex ante governance structures that have been used to control challenges.

The authors argue that Delaware restrictions on controlling shareholders are displaced by federal law, but not sufficiently replaced, and that the existing accountability structures do not provide sufficient protection to minority shareholders.  So, the authors look at ways in which government ownership has been structured in order to minimize political interference at the expense of non-controlling shareholders.  Examples include nonvoting stock, independent directors, dedicated trusts, and separate managements companies.  The authors find that ex ante legal structures and ex post judicial review do not hold much promise for controlling political interference.  Instead, the authors write that what remains is a choice between developing new structures of accountability and bringing this anomalous era of government control to a swift conclusion.  The authors notes that as the U.S. Treasury gets closer to taking some of these companies public again, understanding the law related to the government as controlling shareholder is important in deciding whether to buy shares in an IPO.  They conclude that it is clear we do not currently have adequate legal tools to address the problems posed when the government is the controlling shareholder.

Federalism Compatibilists

Garrick B. Pursley

89 Texas L. Rev. 1365

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Two federalisms exist in the legal landscape: the federalism of the courts and federalism in practice.  The two are quite distinct.  This is the subject of Robert Schapiro’s Polyphonic Federalism, which Pursley reviews in this piece.  Schapiro, writes Professor Pursley, aims to explain the causes of the disconnect between these two federalisms and suggests ways to reconcile judicial conceptions with federalism in practice.

The current federalism regime of the courts is dualistic in nature—designed to defend a governmental regime of separate spheres of federal and state authority that no longer exists in the United States.  In practice, this separate spheres approach breaks down immediately, with the two levels of government often cooperating, sometimes clashing, but almost always interacting in one way or another in conducting their affairs.

There are two academic responses to this issue.  Under the “conventionalist” view, Pursley argues that because the Constitution is the supreme law of the land, adopted and continued in effect by acts of popular sovereignty, government practices simply must be invalidated if they violate it, regardless of their benefits.  The “compatibilist” response embraces these intergovernmental practices, arguing that they should be constitutionally permissible because of their instrumental benefits.  Pursley notes that Schapiro is a leading voice among the compatibilists, and Polyphonic Federalism is the first book-length defense of a general practice-based theory of federalism.  According to Schapiro, federalism doctrine should not focus on drawing lines between state and federal government, but on how to harness the dynamic interaction of these different realms.

Pursley’s review attempts to clarify and assess Schapiro’s effort to build a general normative case for compatibilism.  The resolution of the debate between the two academic views will have important ramifications for the different areas of law and policy in which interactive federalism practices are employed today.  By clarifying the positions and stakes, Pursley hopes to advance the debate.  He first situates Schapiro’s view within the debate and discusses the compatibilists’ shared descriptive thesis. He then attempts to identify Schapiro’s normative thesis on behalf of compatibilism by evaluating several possibilities.  He next provides two conventionalist rejoinders.

Pursley concludes that it is our decision rules that need modifications.  Deciding on the proper modifications involves practical reasoning, he writes, not abstract theorizing.  In this respect, Polyphonic Federalism is a formidable contribution.

The Common Man?

Marsha S. Berzon

89 Texas L. Rev. 1395

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In her review of Justice Brennan: Liberal Champion, Judge Marsha S. Berzon provides a unique perspective on the life and jurisprudence of the late Justice Brennan. Drawing on her experience as Justice Brennan’s first female law clerk, she argues that historians should not discount Justice Brennan’s progressive decision-making as a member of the court simply because he was reluctant to follow through with such ideals in his own personal life. Instead, she admires his ability to recognize sexual discrimination as wrong, even prior to fully divorcing himself from engaging in such discrimination. In her review, she recounts the story of her clerkship application, starting in rejection and ending in a rewarding position in Justice Brennan’s chambers.

Believing in the Goodness of People

Larry Kramer

89 Texas L. Rev. 1403

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Judicial biography, writes Dean Larry Kramer, is a difficult genre.  The work of judges is not often exciting and cases that a judge decides tend to make up the substance of a judicial life.  But, Kramer notes, reading about lawsuits can be less than stimulating.

In reviewing Justice Brennan: Liberal Champion, Kramer finds the authors “were unable to surmount the inherent limitations of the genre.”  Kramer notes that the authors faced some serious constraints: Justice Brennan’s life was not particularly interesting before he went on the bench, he was involved in almost nothing off the bench, and he was extremely reserved in and about his personal life.  Although Brennan was a friendly, gregarious, and likeable person, Kramer thinks that these qualities themselves made up a form of reserve.

Another problem Kramer highlights is that the biography took twenty-five years to complete.  547 pages, the majority of which describe case decisions, is too much, no matter the quality of the writing.  The authors do, however, include some interesting facts throughout.  For example, Justice Brennan experienced discomfort with women clerks.  Also, he was the Court’s only member with prior judicial experience when he was appointed.

The more important question, argues Kramer, is how did this ordinary man become such an extraordinary judge?  Kramer spends some time discussing Brennan’s legacy and his accomplishments as a judge.  Brennan was a coalition builder and a leader among his colleagues.  Kramer thinks that part of his success in these roles is due to the fact that Brennan was someone who did not hate.  That is, he was without anger, without malice, and without bitterness.  Indeed, writes Kramer, he “had a genuine, almost automatic, empathy for everyone and everything.”  It was Brennan’s ability to inspire people, both personally and through his opinions, to strive to do and be better for which Kramer will remember him.

Our Liberalism

Frank I. Michelman

89 Texas L. Rev. 1409

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Stern and Wermiel, writes Professor Michelman, claim that Justice Brennan: Liberal Champion is a tale of surprise.  Not only did Brennan’s service on the U.S. Supreme Court turn out liberal, but it also turned out to be historically momentous, as Brennan became arguably the most influential justice of the entire twentieth century, not to mention the most forceful and effective liberal ever to serve on the Court.

Michelman looks closely at these claims.  He notes that Holmes and Brandeis may challene Brennan as the most influential justice of the twentieth century. Michelman also questions the second claim, wondering whether Brandeis, Frankfurter, Warren, Black, Douglas, or Marshall might have better claims to being the champion liberal justice in the Court’s history.

Michelman makes note of the celebratory tone of the book regarding Brennan’s liberalism, which never expresses doubt about Brennan’s liberal cause.  But Michelman is unsure exactly how Brennan’s liberalism should be classified.  While the book provides a profile of it in the form of data points, Michelman writes that it is left to the reader “to connect the dots as liberalism.”  He argues that Brennan is not a classical or pragmatist liberal, as Brennan was “a stout defender of the uses of reverse race-based discrimination, of the state’s power to impair undoubtedly lawful property holdings for non-urgent reasons, of ‘welfare’ at taxpayer expense.” He also acknowledges that the authors are not writing as general historians but instead might be identifying Brennan as a liberal within the contemporary political polemical meaning of the word.  But he does not think this is quite right either.

Instead, Michelman argues that the best fit is “‘liberal’ in a sense akin to what Rawlsian political philosophy has in mind.”  He thinks this is what the Stern and Wermiel meant by the word, even if they didn’t intentionally say so.  The egalitarian views of the Rawlsian group liberals with which Brennan should be identified, writes Michelman, come “from the political–philosophical ideas of Immanuel Kant.”  He then details how Brennan’s judicial views align with this group of liberal thinkers.  Michelman finds it somewhat surprising that the authors have such a historically recent philosophical turn on the term “liberal.”

A Justice for All Seasons

Robert M O‘Neil

89 Texas L. Rev. 1417

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In the opening of his review, Professor O’Neil states that “[a]ny lingering doubt [about the durability Justice Brennan’s legacy on the Supreme Court] has now been allayed by the publication of Stephen Wermiel’s and Seth Stern’s prodigious biography,” Justice Brennan: Liberal Champion.

O’Neil details how Brennan selected Wermiel to be his official biographer in the 1980s.  Wermiel enjoyed great access to both the confidential papers and personal insights of Brennan.  Wermiel also continued gathering material after Brennan’s retirement, joining the Justice and his former clerks for their annual dinner.  In the 1990s, amid fear that the biography would not be published, Seth Stern joined Wermiel in the writing and researching to accelerate the process to its completion.

This extensive process helped correct some historical inaccuracies.  For example, President Eisenhower was said to have expressed regret over his Supreme Court selections (Brennan and Warren), calling them his two mistakes, which he never actually did.

O’Neil also notes that “a striking value of the book is the authors’ capacity to distill areas of emphasis that transcend chronology.”  One such area is Brennan’s role as a judicial colleague, which included his notable ability “to craft tenuous majorities for important civil rights and liberties.”  Another important role for Brennan was that of mentor to his clerks.

O’Neil writes that the authors have been “realistic about the limitations of an ultimately imperfect ‘champion.’”  They include coverage of a variety of challenges Brennan faces, such as his first wife’s illness as well as the family’s persistent penury.  For details of family and collegial insights, the authors were forced to rely by necessity on “Nancy Brennan as the sole actively involved family survivor.”  O’Neil adds a word of caution in this respect.

O’Neil lastly discusses the authors’ characterizations of the Justice, such as “liberal” and “First Amendment champion.”  He notes that much has been written already about these issues, and concludes that “one should read Liberal Champion with full realization of the limitations and imperfections of its subject, but with no lesser measure of admiration both for the Justice and for the long-sought but most welcome biography.”

Selective Judicial Activism

Geoffrey R. Stone

89 Texas L. Rev. 1423

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In this review of Justice Brennan: Liberal Champion, Professor Stone examines Brennan’s jurisprudence and asks whether “the pejorative ‘judicial activist” [is] warranted.”  Stone first looks at the Court’s economic substantive due process decisions before Brennan joined the Court.  These decisions, writes Stone, “represented a highly controversial form of conservative judicial activism.”  Critics of this type of jurisprudence learned different lessons.  On the one hand, some, like Justice Frankfurter, decided that judicial activism was illegitimate and unwarranted.  Others, like Brennan, thought that judicial activism was not necessarily wrong. But Lochner v. New York was not an appropriate case for judicial activism.

So, it was this concept of selective judicial activism that shaped Brennan’s jurisprudence.  This view, argues Stone, “is deeply rooted in the original understanding of the purpose of judicial review in our system of constitutional governance.”  In light of this, Stone discusses the Framers and the contested inclusion of the Bill of Rights in the Constitution.  And it was an “originalist” conception of judicial review, Stone writes, that informed Brennan’s selective judicial activism.  Given that anti-majoritarian decisions of the kind Brennan famously wrote tend to not sit well with the majority, it is unsurprising that his jurisprudence thus received harsh criticism, especially from the political arena.

Stone next examines the shift in the judicial makeup of the Court.  The Court had become just as conservative by 1993 as it was liberal in 1968.  But the meaning of “conservative” had also shifted in the modern era.  Previously, it meant a justice committed to judicial restraint.  In the modern era, it came to mean a form of selective judicial activism.  Stone writes that the jurisprudence behind modern conservative decisions to, for example, hold unconstitutional affirmative action programs and gun control regulations “has about it the distinctive air of Platonic guardianship,” exhibiting no judicial restraint.  Stone argues that while there is a discernable conception of judicial review beneath Brennan’s use of judicial activism, there is no similar explanation for the jurisprudence of contemporary conservative judicial activists.

What would constitutional law look like today had justices with the same vision as Brennan remained a majority on the Supreme Court?  According to Stone, such a counterfactual Court might have held, for example, “not that corporations have a constitutional right to spend millions to buy the elected representatives of their choice, but that public officials cannot constitutionally use partisan gerrymandering to ensure their perpetuation in power.”  Stone concludes that interpreting the Constitution is not a mechanical, value-free enterprise.  Instead, as Brennan insisted, the Court’s responsibility in this regard is to “keep the community true to its own fundamental principles.”

Worth Another Look: Net-Worth Discovery Standards in Texas

Anthony F. Arguijo

89 Texas L. Rev. 1433

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A defendant’s net worth is discoverable under Texas law for purposes of exemplary damages.  However, as to what constitutes net worth, the law provides little additional guidance.  In this Note, Arguijo addresses the net-worth debate and proposes a solution to some of the problems.

The author first presents the evolution of Texas law in this area, looking at cases such as Lunsford v. Morrisand Sears, Roebuck & Co. v. Ramirez.  Initially, courts allowed broad discovery, but they have begun to limit the amount of discoverable information.  Indeed, many courts have formulated their own tests regarding net worth.  The most common of these relies upon Generally Accepted Accounting Principles (GAAP).

Arguijo next analyzes the GAAP approach to net-worth discovery.  GAAP has a number of advantages, including the clarity and consistency of its rules.  While at first glance the GAAP approach appears to offer the best solution to the inconsistency in this area of the law, Arguijo finds this approach has shortcomings in light of the policy justifications for net-worth discovery in exemplary-damage cases.

Arguijo then examines the policy justifications and concerns regarding net-worth discovery.  It is intrusive, he writes, but concerns about privacy cannot end the discussion.  These privacy concerns must instead be balanced against the policy justification for such damages, which is punishment.

Thus, Arguijo offers a solution for the proper standard for net-worth discovery.  He argues that in exemplary-damages cases, courts should allow the discovery necessary to give an accurate representation of the defendant’s current net worth.  This standard addresses concerns over both timing and materials.  Arguijo notes that this is not the only solution to the problem, and the Texas Supreme Court has a number of options to choose from.  The important thing, writes Arguijo, is that clarity exists.