Current Issue

Volume 73 | Summer 2021 | Issue 2


ARTICLES


Policing the Police: A Roadmap to Police Accountability Using Professional Liability Insurance

Deborah Ramirez and Tamar Pinto

“I can’t breathe,” pleaded George Floyd in May 2020 after an officer stopped him for allegedly using a phony $20 bill. Police officer Derek Chauvin knelt on Floyd’s neck for over nine minutes, killing Floyd and sparking protests around the country that continue to this day. A few years earlier, in Staten Island, Eric Garner uttered the same words as Officer Pantaleo used an illegal chokehold on Garner that ended his life for allegedly selling untaxed cigarettes.

In light of recent police shootings and violence, there have been rampant discussions about defunding and abolishing the police, the abolition of qualified immunity, and police accountability more generally. These discussions have revealed that it is nearly impossible to weed out the bad officers so that the good officers can thrive. Incident after incident demonstrates to the nation what many of those in communities of color have long known: there is currently no real police accountability for police misconduct.

It is our thesis that even if we defund, dismantle, and reimagine a narrowed police force by transferring responsibilities to other professionals such as social services, healthcare, and community services, we will still need a system of accountability for a police force focused more narrowly on routine, on-going, and violent crimes.

This Article proposes a four-part solution to the current lack of real police accountability by restricting police unions’ collective bargaining, narrowing qualified immunity, and using professional liability insurance as an instrument for identifying officers engaged in risky policing behaviors and pricing them out. Just as physicians, lawyers, accountants, and other professionals carry insurance for protection against claims made by their clients, our solution proposes that police officers carry insurance to mitigate police misconduct. Our proposal offers a constructive roadmap to police accountability and aims to create a system that will save lives by detecting, preventing, and deterring police misconduct, while at the same time reducing taxpayer costs and compensating victims fairly.

 

The Trial Preparation Procedures—Civil

Will Rhee & L. Richard Walker

In an effort to provide scholarship immediately useful to the litigator, this Article proposes a detailed systems workflow to plan and coordinate preparing for federal civil trials called the Trial Preparation Procedures—Civil or “TrialPrepPro—Civil” for short. Although there is an abundance of anecdotal “learning from doing” trial preparation guidance, empirically testable “learning about doing” trial preparation guidance is rare. We present our TrialPrepPro to learn more about doing.

The TrialPrepPro is modeled after the battle-proven U.S. Army Troop Leading Procedures used, with modifications, by all U.S. military services, our NATO allies, and many other foreign militaries. Although there is ample anecdotal or episodic published trial preparation guidance, to the best of our knowledge, the TrialPrepPro is the first attempt to provide a comprehensive, ready-out-of-the-box trial preparation framework.

In light of the U.S. legal profession’s established lack of management training, the TrialPrepPro helps a busy practitioner, law firm, or legal services organization to coordinate the arduous and increasingly rare trial preparation process among team members. Moreover, the TrialPrepPro establishes a thoughtful minimum shared professional standard for any law office and any trial team. The TrialPrepPro is meant to be shared, customized, and, above all, used in actual practice. Accordingly, we encourage practitioners to download a free editable copy of the TrialPrepPro from our website (http://www.wvcle.wvu.edu/TrialPrepPro). We only ask that downloaders complete a short survey and share any modifications. We plan to provide a criminal version, the TrialPrepPro—Criminal, in a follow-up article.

Deference is Dead (Long Live Chevron)

Nathan Richardson

Chevron v. NRDC has stood for more than 35 years as the central case on judicial review of administrative agencies’ interpretations of statutes. Its contours have long been debated, but more recently it has come under increasing scrutiny, with some—including two sitting Supreme Court Justices—calling for the case to be overturned. Others praise Chevron, calling deference necessary or even inevitable. All seem to agree the doctrine is powerful and important.

This standard account is wrong, however. Chevron is not the influential doctrine it once was and has not been for a long time. It has been eroded from the outside as a series of exclusions have narrowed its scope and has been hollowed out from the inside as Justices have become ever more willing to find clear meaning in statutes, thereby denying deference to agencies. In recent years, agencies have won only a handful of statutory interpretation cases, and none in more than four years. Only once since 2015 has deference been outcome-determinative. At the Supreme Court level—though not, for now, in the circuit courts—deference is dead. The once-crystal Chevron has turned to mud. As a result, however, it is less likely to be formally overturned than widely believed—critics of deference and of administrative power on the Court would gain little. Instead, Chevron’s future is likely to be one of further decline, at least in the short term. This has implications for major policy areas like climate change, health care, and immigration where regulatory policy is necessary and challenges are likely to reach the Court.

 

Destruction of Cultural Heritage as a Violation of Human Rights: Application of the Alien Tort Statute

Emily Behzadi

In recent years, armed conflicts around the world have occasioned widespread destruction of cultural heritage sites. From the demolition of Palmyra in the Syrian Arab Republic to the destruction of Sufri Shrines in Mali, the intentional despoliation of these important cultural heritage sites is not only an uncontroverted violation of international law but a form of cultural genocide. The destruction of cultural heritage profoundly impacts citizenry on a local, national, and global level. Cultural heritage is an expression of fundamental and universally recognized human rights, including rights to freedom of expression, freedom of thought, freedom of conscience and religion, and freedom of culture. Despite the importance of this expression, suing the perpetrators of these wanton attacks in U.S. courts is extraordinarily difficult, if not impossible. While many plaintiffs have successfully stated a claim under the Alien Tort Statute for violation of the law of nations, involving personal injury or death suffered by a foreign plaintiff, the destruction of property has consistently failed to meet the stringent legal thresholds imposed by the United States Supreme Court.

This Article reviews the evolving law pertaining to the Alien Tort Statute (“ATS”) and the challenges posed by its application to torts against cultural heritage. In light of recent precedent, this paper sets forth a bold proposal: Under existing international law, the destruction of cultural heritage should qualify as a violation of a norm of the law of nations and thus fall under the penumbra of the Alien Tort Statute. A discussion of the value of cultural heritage is particularly important as the United States grapples with the divisive conversation over the destruction of confederate monuments. Although the concept of invoking “universal jurisdiction” is controversial in principle and in practice, this avenue is necessary to effectively redress the harms to individuals and cultural groups caused by the destruction of heritage sites, and in doing so holds accountable those who commit these crimes against humanity.

 

It’s Time for Congress To Snap to It and Amend 28 U.S.C. § 1441(1)(B)(2) To Prohibit Snap Removals that Circumvent the Forum Defendant Rule

E. Farish Percy

Part I of this Article reviews the varied court opinions interpreting the “properly joined and served” language in section 1441(b)(2). Part II of this Article examines the quantitative extent to which snap removals have occurred in recent years within the Third Circuit, which first approved snap removal when it decided Encompass in August 2018.  The author identified 355 cases in which pre-service removal to federal district courts within the Third Circuit was attempted during the period from August 22, 2018 through June 30, 2020. Part II examines the extent to which such removals were ultimately successful, as well as the grounds upon which plaintiffs moved for, and were granted, remand. Part II also explores other demographic data revealed by the study, including the types of cases in which pre-service removal was attempted and the number of cases that exclusively involve forum defendants.

Part III explores the qualitative problems caused by snap removals. Recognition of snap removal raises federalism concerns because extensive snap removal will retard states’ ability to develop tort law as well as other state law.  Pre-service removal increases litigation costs, encourages gamesmanship by the parties, generates inefficient remand litigation regarding the propriety of pre-service removal, and establishes a system whereby the defendant’s right to remove is determined by the speed with which the plaintiff serves the forum defendant. Part IV of the Article explains why congressional action, rather than judicial reform, is necessary.

Part V considers and critiques the proposed Removal Jurisdiction Clarification Act of 2020 (H.R. 5801), as well as other suggested legislative remedies. Some proposals, including H.R. 5801, have been referred to as “snapback” proposals because they would not prohibit snap removal on the front-end, but instead would authorize the plaintiff to move for remand after service on the forum defendant within a specified time period.  Part V argues that the “snapback” proposals are problematic because they will generate remand litigation and are unlikely to effectively thwart plaintiffs’ strategic joinder or forum defendants given that plaintiffs simply have to serve the forum defendant to obtain remand. Part V concludes by urging Congress to completely prohibit pre-service removal be deleting the “and served” language from section 1441(b)(2). This proposal is simple, will not generate remand litigation, and will faithfully serve the forum defendant rule’s purpose. Given that there are few cases in which a plaintiff is willing to name a forum defendant to defeat removal but unwilling to serve the forum defendant to defeat removal, any legislative amendment that retains a plaintiff’s failure to serve the forum defendant as a proxy for the plaintiff’s lack of intent to pursue the forum defendant is likely to be largely ineffective and more trouble than it is worth.

 

Dealing With the Elephant in the Robe: How To Limit the Rising Role of Political Affiliation in the Judiciary Using the First Amendment

Catherine Morris

With record-breaking numbers of federal judicial appointments, a newly-implemented selection process for Administrative Law Judges, and a state judicial selection process requiring a balance of the two major political parties on its courts, is it too late to rescue the judiciary from a highly polarized political climate? Allowing judicial selection based solely upon political affiliation can endanger the very nature of judicial independence. Under a narrow First Amendment exception, appointments based upon political loyalties are allowed only for “policymaking” positions. This Note will argue that three forms of the judiciary: State, Article III, and Administrative Law Judges, should be excluded from the policymaking exception and, subsequently, that judicial selection should not be based solely upon political affiliation, as judges are not “policymakers.” This Note will also analyze varying methods of judicial selection for State, Article III, and Administrative Law Judges, and argue for the adoption of particular methods to prevent the judiciary from transforming into an inherently “policymaking” and political entity. Specifically, this Note will contend that independent non-party based nominating commissions for State and Article III members of the judiciary, as well as the reinstatement of “competitive service” Administrative Law Judge selection, support the exclusion of the judiciary from the First Amendment policymaking exception.

 

Biosimilars: A Lesson From Europe

Alyssa N. Brandley

For years, biologics—drugs derived from humans, animals, or microorganisms—have dominated a significant portion of the pharmaceutical market with the aim to tackle life-threatening diseases, such as cancer, diabetes, or specific immune disorders.  This new decade introduces an exciting time for innovators, as some of the most widely known biologics face long-awaited patent expiration.  In the coming years, patent expiration on brand name drugs will undoubtedly pave the way for cheaper health care alternatives.  Economists expect the biosimilar market to increase worldwide from $5.95 billion in 2018 to $23.63 billion by 2023.

This Note will provide a background on the current state of biosimilars in the United States, comparing it with that of Europe. Focus is given to Europe because that is where the first biosimilar medicine was introduced over a decade ago, and is where biosimilar approval has continued to see success. This Note will also briefly explore potential explanations as to why biosimilars have been so slow to enter into the market, especially in the United States. Finally, this Note will address current congressional proposals and will offer other potential solutions to increase the presence of biosimilars in the U.S. market.

 

The Ill-Fated Employee: Foreign Sovereign Immunity in Employment Disputes and a Legislative History that has Swallowed the Text of the Statute

Andrew Hoy

The United States contains hundreds of embassies and consulates operated by foreign sovereigns that maintain a presence in the United States. These embassies and consulates are staffed by citizens of the foreign sovereign as well as citizens of the United States or other countries. When these employees sue their foreign-state employers in the district courts of the United States, issues of sovereign immunity may prevent them from bringing their suits. The Foreign Sovereign Immunities Act (“FSIA”),  passed by Congress in 1976, grants foreign states immunity from jurisdiction of the courts of the United States unless one of the enumerated exceptions applies, one of which is the commercial exception. In the context of employment disputes, circuit courts have had difficulty applying consistent analyses to determine if the foreign-state employer should receive immunity from the suit. The latest consequence of this inconsistency is Merlini v. Canada,  in which the First Circuit effectively held that Canada was subject to the requirements of Massachusetts’s workers’ compensation statutes, despite the fact that Canada already has a legislatively-created workers’ compensation system applicable to its embassies and consulates across the world. This Note will argue that circuit courts have relied too heavily on a legislative history of the FSIA that is often inconsistent with the text of the statute, and that additionally is inconsistent with Supreme Court jurisprudence of the FSIA commercial exception.