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How Hard Should It Be to Bring a Class Action? [March 7, 2018]
"To curb such abuses, many courts have prohibited plaintiffs from pursuing a class action unless the plaintiff first proves that the proposed class is 'ascertainable'--that is, that 'the members of [the] proposed class' are 'readily identifiable.' Courts disagree, however, over what 'ascertainability' means. In particular, the U.S. Courts of Appeals have divided regarding whether a plaintiff must satisfy a separate 'administrative feasibility' requirement in order to prove that a proposed class is ascertainable. Because defendants have successfully invoked this 'administrative feasibility' requirement 'with increasing frequency' in order to defeat class actions, some commentators have dubbed administrative feasibility 'one of the most contentious issues in class action litigation these days.' The debate over ascertainability takes place against a broader debate over class actions generally, with companies increasingly reporting that they 'are facing bet-the-company class actions in which the exposure is deemed potentially devastating to the company,' while proponents of class actions have voiced increasing concerns about legislative and judicial efforts to limit the procedural device. This Sidebar explores the burgeoning administrative feasibility requirement and its broader significance to class action litigation and consumer rights."
Library of Congress. Congressional Research Service
Lewis, Kevin M.
2018-03-07
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Class Action Lawsuits: A Legal Overview for the 115th Congress [April 11, 2018]
"This report serves as a primer on class action law and analyzes areas that have been the focus of congressional discussions concerning class actions. The report first discusses the broader public policy debate over class actions, including why class actions exist and what risks they pose to the American system of civil justice. The report then details what a plaintiff is required to show under the Federal Rules of Civil Procedure in order to achieve class action 'certification'--that is, in order to pursue an action on behalf of an entire class. Throughout, the report addresses the ways in which the Supreme Court and lower federal courts have attempted to balance the benefits of class actions against their potential drawbacks."
Library of Congress. Congressional Research Service
Lewis, Kevin M.; Freeman, Wilson C.
2018-04-11
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Bankruptcy and Student Loans [February 22, 2018]
"As overall student loan indebtedness in the United States has increased over the years, many borrowers have found themselves unable to repay their student loans. Ordinarily, declaring bankruptcy is a means by which a debtor may 'discharge'--that is, obtain relief from--debts he is unable to repay. However, Congress, based upon its determination that allowing debtors to freely discharge student loans in bankruptcy could threaten the student loan program, has limited the circumstances in which a debtor may discharge a student loan. Under current law, a debtor may not discharge a student loan unless repaying the student loan would impose an 'undue hardship' upon the debtor and his dependents."
Library of Congress. Congressional Research Service
Lewis, Kevin M.
2018-02-22
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Bankruptcy Basics: A Primer [March 22, 2018]
"U.S. bankruptcy law has two central aims. First, bankruptcy law seeks to relieve debtors of certain obligations they are unable to repay by providing them with a 'fresh start' from financial difficulties. At the same time, bankruptcy law attempts to preserve the countervailing interests of creditors and other stakeholders by maximizing total creditor return in an orderly and efficient fashion. Congress and the courts have established a complex system of statutes, procedural rules, and judicial precedents intended to balance these competing interests."
Library of Congress. Congressional Research Service
Lewis, Kevin M.
2018-03-22
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What Happens When Five Supreme Court Justices Can't Agree? [April 5, 2018]
"The Supreme Court generally adjudicates by majority rule; whatever legal position garners a majority of votes in favor of its legal position prevails, and the majority's ruling in that case becomes binding precedent in subsequent cases. But what happens when a majority of Justices agree that a party should win, but cannot agree as to 'why' that party should win? Which Justice's opinion, if any, becomes the law when no single opinion enjoys a majority vote?"
Library of Congress. Congressional Research Service
Lewis, Kevin M.
2018-04-05
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Jurisdiction Stripping: When May Congress Prohibit the Courts from Hearing a Case? [March 15, 2018]
"The U.S. Supreme Court recently issued its decision in Patchak v. Zinke, a case implicating a host of difficult legal issues concerning the respective powers of Congress and the judiciary. Patchak ultimately upheld the Gun Lake Trust Land Reaffirmation Act (Gun Lake Act) against a separation-of-powers challenge. However, because a majority of the Court could not agree on the legal basis for its decision, Patchak's ultimate meaning with respect to Congress's power over the courts remains uncertain. The various opinions in Patchak signal sharp divisions on the Court concerning the scope of Congress's power to 'strip' the jurisdiction of federal courts. Whereas at least four Justices appear to view that power as being 'plenary' in nature, at least four other Justices embrace a more restricted view of Congress's authority. Patchak also implicates several other important issues related to the law of federal courts, including whether a particular law alters a court's jurisdiction, as well as what Congress must say in order to modify the government's sovereign immunity."
Library of Congress. Congressional Research Service
Lewis, Kevin M.
2018-03-15
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When the City Goes Broke: Pensions, Retirees, and Municipal Bankruptcies [April 10, 2018]
"In recent years, a significant number of cities, towns, and other municipalities in the United States have found themselves increasingly unable to pay their debts. In order to offer municipalities relief from many types of debts they cannot repay, Chapter 9 of the Bankruptcy Code authorizes certain municipalities to file for bankruptcy. However, filing for bankruptcy may adversely affect the municipality's creditors, especially beneficiaries of underfunded municipal retirement plans (who, along with bondholders, often hold 'the lion's share' of a municipality's financial obligations). Because a number of municipalities face a 'dramatic and growing shortfall in public pension funds,' many 'firefighters, teachers, police officers, and other public employees' who purportedly have 'a right to pension benefits at retirement' face a significant risk that their pensions will ultimately not be fully repaid. The fact that public pensions, unlike their private counterparts, are neither subject to the 'vesting and funding rules imposed by' the Employee Retirement Income Security Act of 1974 nor 'protected by the federal pension guarantee program operated by the Pension Benefit Guaranty Corporation' could, according to some commentators, further exacerbate that risk. Moreover, because courts presiding over municipal bankruptcy cases have generally been 'amenable to modifying pension debt in bankruptcy,' retirees' pension benefits may potentially be significantly curtailed when a municipality declares bankruptcy."
Library of Congress. Congressional Research Service
Lewis, Kevin M.
2018-04-10
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Questioning Judicial Nominees: Legal Limitations and Practice [August 30, 2018]
"The U.S. Constitution vests the Senate with the role of providing 'advice' and affording or withholding 'consent' when a President nominates a candidate to be an Article III judge--that is, a federal judge entitled to life tenure, such as a Supreme Court Justice. To carry out this 'advice and consent' role, the Senate typically holds a hearing at which Members question the nominee. After conducting this hearing, the Senate generally either 'consents' to the nomination by voting to confirm the nominee or instead rejects the nominee."
Library of Congress. Congressional Research Service
Lewis, Kevin M.; Brannon, Valerie C.
2018-08-30
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Should Federal Law Restrict Where a Company May File Bankruptcy? [January 18, 2018]
"Commentators, citing 'the large concentration of business bankruptcies' filed in New York and Delaware to the exclusion of other jurisdictions, have debated for several decades whether Congress should reduce the flexibility that many companies currently enjoy when selecting where to file bankruptcy. Critics maintain that the current bankruptcy venue rules-many of which offer large companies a wide range of forums in which they may permissibly file bankruptcy-encourage debtors to forum-shop for jurisdictions that favor debtors and their attorneys to the detriment of creditors and other stakeholders. Supporters of the existing venue rules, by contrast, argue that concentrating large business bankruptcies in a small number of forums allows judges and attorneys in those jurisdictions to develop extensive expertise and experience with complex bankruptcy matters, thereby benefiting debtors, creditors, and stakeholders alike."
Library of Congress. Congressional Research Service
Lewis, Kevin M.
2018-01-18
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Suing Subway: When Does a Class Action Settlement Benefit Only the Lawyers? [December 12, 2017]
"In 2013, an Australian teenager measured a sandwich he purchased from a Subway restaurant and discovered that his 'footlong' sandwich was missing an inch. After the teen posted his discovery on social media, his post went viral, and a group of consumers commenced a class action lawsuit against the restaurant chain alleging that its sandwiches were shorter than advertised. The parties ultimately agreed to settle their dispute on the condition that Subway (1) inspect and measure its baked rolls to ensure that its sandwiches were at least 12 inches in length; and (2) pay plaintiffs' counsel over half a million dollars in attorney fees. In a recent decision, however, the U.S. Court of Appeals for the Seventh Circuit rejected this proposed settlement. The Court ruled that the settlement violated the Federal Rules of Civil Procedure's requirement that class action settlements be 'fair, reasonable, and adequate' because the settlement did not meaningfully benefit Subway's customers, but instead solely benefited plaintiffs' counsel. The 'Subway' decision reflects a growing (but not universal) trend of courts increasingly scrutinizing class action settlements to evaluate whether they provide meaningful benefits to class members or instead serve predominantly to enrich class counsel. This Sidebar explores the 'Subway' ruling and its broader significance to class action litigation, tort reform, and consumer rights."
Library of Congress. Congressional Research Service
Lewis, Kevin M.
2017-12-12
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Federalism-Based Limitations on Congressional Power: An Overview [September 27, 2018]
"The U.S. Constitution establishes a system of dual sovereignty between the states and the federal government, with each state having its own government, endowed with all the functions essential to separate and independent existence. Although the Supremacy Clause of the Constitution designates 'the Laws of the United States' as 'the supreme Law of the Land,' other provisions of the Constitution--as well as legal principles undergirding those provisions--nonetheless prohibit the national government from enacting certain types of laws that impinge upon state sovereignty.The various principles that delineate the proper boundaries between the powers of the federal and state governments are collectively known as 'federalism.' Federalism-based restrictions that the Constitution imposes on the national government's ability to enact legislation may inform Congress's work in any number of areas of law in which the states and the federal government dually operate."
Library of Congress. Congressional Research Service
Nolan, Andrew; Lewis, Kevin M.; Sykes, Jay B. . . .
2018-09-27
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Justice Anthony Kennedy: His Jurisprudence and the Future of the Court [July 11, 2018]
"On June 27, 2018, Justice Anthony M. Kennedy announced that, effective July 31, 2018, he would retire from active service as an Associate Justice on the Supreme Court of the United States. His decisive role on the Court, particularly since the Roberts Court era began in 2005, cannot be overstated. The Roberts Court era has witnessed the Court issue a number of landmark rulings, many of which have involved matters where the sitting Justices were closely divided. Justice Kennedy typically voted with the majority of the Court in such cases. Since the October 2005 term that marked the beginning of the Roberts Court, Justice Kennedy voted for the winning side in a case more often than any of his colleagues in 9 out of 12 terms."
Library of Congress. Congressional Research Service
Nolan, Andrew; Lewis, Kevin M.; Brannon, Valerie C.
2018-07-11
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Congressional Participation in Litigation: Article III and Legislative Standing [Updated March 28, 2019]
From the Document: "This report provides an overview of the standing doctrine as it applies to lawsuits involving legislators, committees, and houses of Congress. First, the report lays out the general rules of standing as they apply in every case in the federal courts and the main purpose behind the doctrine. One central purpose of the standing doctrine--protecting the court's role in the constitutional balance of powers--is a theme that underlies this report, as many of these cases involve courts deciding whether they have the power to adjudicate high-profile political disputes between the other two branches of the federal government. Next, the report considers the relatively few Supreme Court cases to discuss legislator standing, explaining the general principles that courts have drawn from those cases. The report then analyzes how lower courts have interpreted the limited Supreme Court case law on the issue, beginning with cases involving individual legislators, and following with cases brought by entire institutions, such as committees or houses of a legislature. The report then considers other issues relating to legislator participation in litigation, such as intervention under the Federal Rules of Civil Procedure or participation purely as an 'amicus curiae,' or a 'friend of the court.' The report concludes by identifying unresolved doctrinal questions and offering takeaways for prospective congressional litigants."
Library of Congress. Congressional Research Service
Freeman, Wilson C.; Lewis, Kevin M.
2019-03-28
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Code of Conduct for the Supreme Court? Legal Questions and Considerations [February 6, 2019]
From the Document: "The Code of Conduct for United States Judges (the Code)--a set of ethical canons that the Judicial Conference of the United States (Judicial Conference) adopted to promote the integrity, independence, and impartiality of the federal judiciary--governs the behavior of most federal judges. The Code does not, however, explicitly apply to Justices of the U.S. Supreme Court. Although the Justices frequently consult the Code--along with other sources--for guidance when performing their judicial duties, the Court is not presently subject to a defined body of general ethical rules. [...] This Sidebar canvasses the relevant legal considerations surrounding proposals to establish a Supreme Court code of conduct. After discussing the existing Code that applies to lower federal judges, the Sidebar next describes recent legislative proposals to create a similar code for the Supreme Court, as well as potential constitutional obstacles to those proposals."
Library of Congress. Congressional Research Service
Lewis, Kevin M.
2019-02-06
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Military Medical Malpractice and the 'Feres' Doctrine [February 11, 2019]
"The Department of Defense (DOD) employs physicians and other medical personnel to administer health care services to servicemembers. Occasionally, however, patient safety events occur and providers commit medical malpractice by rendering health care in a negligent fashion, resulting in the servicemember's injury or death. This In Focus discusses the standards and procedures governing the disposition of medical malpractice claims that servicemembers and non-servicemembers assert against the United States, as well as pertinent considerations for Congress."
Library of Congress. Congressional Research Service
Mendez, Bryce H. P.; Lewis, Kevin M.
2019-02-11
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Federal Tort Claims Act (FTCA): A Legal Overview [May 21, 2019]
From the Document: "A plaintiff injured by a defendant's wrongful act may file a tort lawsuit to recover money from that defendant. To name a particularly familiar example, a person who negligently causes a vehicular collision may be liable to the victim of that crash. By forcing people who wrongfully injure others to pay money to their victims, the tort system serves at least two functions: (1) deterring people from injuring others and (2) compensating those who are injured. Employees and officers of the federal government occasionally commit torts just like other members of the general public. For a substantial portion of this nation's history, however, plaintiffs injured by the tortious acts of a federal officer or employee were barred from filing lawsuits against the United States by 'sovereign immunity'--a legal doctrine that ordinarily prohibits private citizens from haling a sovereign state into court without its consent. Until the mid-20th century, a tort victim could obtain compensation from the United States only by persuading Congress to pass a private bill compensating him for his loss."
Library of Congress. Congressional Research Service
Lewis, Kevin M.
2019-05-21
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Fair Debt Collection Practices Act: Legal Framework [June 10, 2019]
Fro the Overview: "Congress enacted the Fair Debt Collection Practices Act (FDCPA) in 1977 to 'eliminate abusive debt collection practices by debt collectors' by rendering particular types of collection activities unlawful. This In Focus provides an overview of some of the FDCPA's most salient provisions and identifies pertinent legal considerations for Congress."
Library of Congress. Congressional Research Service
Lewis, Kevin M.
2019-06-10
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'Feres' Doctrine: Congress, the Courts, and Military Servicemember Lawsuits Against the United States [June 5, 2019]
From the Document: "The Supreme Court's 1950 decision in 'Feres v. United States' generally bars active-duty servicemembers from pursuing tort lawsuits against the United States for injuries that arise out of military service. Although some Members of Congress, judges, and scholars have criticized 'Feres,' the Supreme Court has on multiple occasions declined requests to abrogate or modify the doctrine. Most recently, on May 20, 2019, the Supreme Court declined to take up the case of 'Daniel v. United States,' in which the petitioner asked the Court to partially overrule 'Feres' and thereby allow him to pursue a medical malpractice lawsuit against the federal government. This Sidebar analyzes 'Feres,' the legal issues surrounding the doctrine, and what the Court's most recent decision not to revisit the doctrine may mean for Congress."
Library of Congress. Congressional Research Service
Lewis, Kevin M.
2019-06-05
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Introduction to Tort Law [August 13, 2019]
From the Document: "Tort law is the body of rules concerned with remedying harms caused by a person's wrongful or injurious actions. For instance, if a surgeon tasked with amputating a patient's left leg commits medical malpractice by instead amputating her right leg, that patient may be able to pursue a tort lawsuit for monetary damages against the surgeon. Traditionally, with a few significant exceptions, tort law has primarily been a matter of state rather than federal law. Tort law has also historically been a matter of common law rather than statutory law; that is, judges (not legislatures) developed many of the fundamental principles of tort law through case-by-case adjudication. Over time, however, state legislatures and Congress have begun to intervene in the development of tort law to a greater extent."
Library of Congress. Congressional Research Service
Lewis, Kevin M.
2019-08-13
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