News

Peck Presents on Civil Justice Issues in Upcoming Supreme Court Term

September 16th, 2022

      CCL President Robert S. Peck reviewed upcoming U.S. Supreme Court cases that involve civil justice issues at the annual preview hosted by the Law and Economics Center at George Mason University Antonin Scalia School of Law, along with John Beisner of the Skadden Arps law firm.

      The conversation started with Mallory v. Norfolk Southern Railway, a case involving personal jurisdiction under Pennsylvania's corporate registration statute, which has treated registration as consent to general jurisdiction for more than a century and was upheld by the Supreme Court in 1917. Modern caselaw and the Court's new heavy emphasis on originalism, the interpretative theory that treats the objective of those who framed and ratified the Constitution as determinative of its meaning, brings new questions into play on the state statute's validity. 

      Peck explained that, with Justice Gorsuch's recent concurrence suggesting a new look at fundamental concepts of personal jurisdiction, the case could provide a launching point for a new jurisprudence. He distinguished what was at issue in the Pennsylvania case, where the injury took place out of state, with a Georgia case also on the Supreme Court's docket, where there were more substantial connections to the state that justified the assertion of personal jurisdiction, indicating the Court could provide guidance.

      Other cases discussed included National Pork Production Council v. Ross (Dormant Commerce Clause), Axon Enterprise, Inc. v. FTC (whether a corporation under investigation by an independent federal agency could bypass the Administrative Procedures Act and challenge the agency's constitutionality in federal district court), and Health and Hospital Corporation v. Televsky (private right of action under statutes passed pursuant to the Spending Clause).

      Peck also highlighted two petitions from CCL's docket: Recht v. Morrisey (commercial speech) and Douglass v. NYK Line (personal jurisdiction).

CCL President Attends American Law Institute Meeting

September 15th, 2022

     CCL President Robert S. Peck attended and contributed to discussions of the American Law Institute's Concluding Provisions draft in Philadelphia as part of its decades-long effort to update its Restatement of Torts.

      During the meeting, discussants probed and suggested changes to sections on medical malpractice, vicarious liability, spoliation, and miscellaneous issues in tort law. The small-group effort will result in further revisions that will be the subject of future discussions.

CCL President Files Comments on ALI Restatement of Consumer Contracts

August 25th, 2022

     As a member of the American Law Institute consultative group for the Restatement of Consumer Contracts, CCL President Robert S. Peck filed comments suggesting that the latest draft underplayed consumer expectations as a metric for determining the validity of contract provisions imposed by businesses on their customers. 

     Peck's comments recalled the discussion at the ALI Annual Meeting, where consumer expectations were discussed. He also provided caselaw and examples to bolster his position.

     The Consumer Contracts Restatement was approved, subject to final adjustments at the May meeting. The new draft and Peck's comments are part of those final adjustments.

CCL's Peck Succeeds in Amending and Passing Resolutions at ABA House of Delegates Meeting

August 9th, 2022

     Members of the ABA House of Delegates approved two resolutions as ABA policy in which CCL's Robert S. Peck played a key role. The first enacted new model rules for the governance and operation of legal referral programs, and the second reaffirmed existing ABA policy limiting the payment of legal fees to non-lawyers. 

      The first resolution, originally proposed but withdrawn in February, updated decades-old rules concerning legal referral projects. However, as proposed, the new rules would have permitted for-profit, non-lawyer legal referral programs to share contingency fees earned by the lawyers who received the referral, while imposing none of the client confidentiality or conflict of interest rules applicable to lawyers. In addition, the proposed rules had a weak transparency provision for the algorithms used by online legal platforms. Based on an amendment drafted and moved by Peck, the model rules now have a prohibition against fee-sharing with non-lawyer legal referral programs and a more demanding transparency requirement. 

       Peck was also one of the leaders of a group that proposed a reaffirmation of a 2000 policy adopted by the ABA in the face of efforts to expand fee-sharing with non-lawyers. That policy passed unanimously after opponents of the resolution agreed to an amendment that also reaffirmed a policy encouraging innovation in building greater access to justice. Peck explained that the resolution he supported did not threaten innovation or access to justice, a key part of his practice, but that permitting large corporations to practice law or take over legal practices would not benefit people in need of legal help. With agreement on the amendment, opposition evaporated, and the resolution passed. 

Peck Article on Smart Products and Liability Published

July 25th, 2022

      The Hastings Law Journal has published CCL President Robert S. Peck's article, The Coming-Products Liability Revolution, originally presented as a paper at a symposium sponsored by the Pound Civil Justice Institute and the UC Hastings Center for Litigation and the Courts last November in San Francisco.

      Peck's article discusses how connected products, sometimes referred to as "smart" products, remain connected to manufacturers, who provide updates and maintain extensive control over the products even while in the consumer's possession. Old notions that products must be fit for use at the time they leave the manufacturer's or retailer's hands no longer make sense. Instead, Peck suggests that a form of strict liability must attach to injuries caused by products and relies on a long history of tort law to demonstrate why evolving concepts of liability accompany innovative technological advances.  

Blog Post Discusses "Too Many (Foot)notes" in Briefs

July 10th, 2022

     In his latest post on the Appellate Advocacy Blog, CCL President Robert S. Peck discusses a court's rejection of a brief for violating its rule against excessive footnoting. Many courts and judges look askance at footnotes, but some of the practice's harshest critics used them in opinions regularly. Peck's advice and description of the problem can be read at Too Many (Foot)notes.

CCL's Peck Quoted by Bloomberg Law about State Constitutions and Abortion after Dobbs

June 29th, 2022

     In "Abortion Rights Wars Shift to Battles over State Constitutions," Bloomberg Law reporter Mary Anne Pazanowski details the developing legal battle between the two sides now that the U.S. Supreme Court has abrogated the federal constitutional right. 

      She quotes CCL President Robert S. Peck, as a former law professor who taught classes about state constitutions, about the state of constitutional law on abortion rights. Peck noted that four states have used explicit state constitutional privacy rights to uphold rights to abortion, while other states have found a right under other provisions. Still, Peck points out that, as the Iowa Supreme Court held recently, changing membership on courts open the rights already established to reconsideration.

       The article can be found at Bloomberg Law on State Constitutions and Abortion.

Study Co-Authored by CCL President Peck Featured in Newsweek Opinion

May 18th, 2022

     A new Newsweek opinion piece on the decline of the civil jury centers on a study of the jury and recommendations for its revival co-authored by CCL President Peck and law professors Richard Jolly (Southwestern Law) and Valerie Hans (Cornell Law). The article by John Quinn, managing partner and founder of the Quinn Emanuel law firm, summarizes the study published last fall by the Civil Justice Research Institute at Berkeley Law School. A longer, more detailed version of the study will be published later this year in the Georgia Law Review.

Peck Participates in ALI Annual Meeting

May 18th, 2022

     CCL President Robert S. Peck supported amendments and participated in the debate at the American Law Institute's Annual Meeting in Washington, DC. The ALI, which celebrates its 100th anniversary next year, is best known for publishing Restatements of the Law, which are often used to guide courts about the consensus in the law.

      Among the issues the ALI considered was a new Restatement on the Law of Consumer Contracts, an emerging area of law in which precedents are still developing and general contract principles provide unsatisfying guidance. At the meeting on May 17, the draft Restatement was amended to provide a new definition of "reasonableness" that considers the consumer's perspective and the totality of the circumstances. A second amendment provided guidance in interpreting the Restatment, emphasizing the importance of consumer expectations. CCL's Peck supported both changes.

      The ALI also considered sections of the Restatement:Torts, Concluding Provisions, and Restatement: Torts, Remedies. Neither of those projects, part of an overhaul of tort law begun 30 years ago, were completed, although various sections were approved.

Peck Rebuts Criticism of Unenumerated Constitutional Rights

May 15th, 2022

     Responding to critiques about unenumerated constitutional rights, CCL President Robert S. Peck devoted his post to the Appellate Advocacy Blog to the subject, explaining both textual and originalist justifications and for proper application of common-law interpretative methodologies. 

     In Denying Unenumerated Rights, Peck explains that all sections of the political spectrum have their favorite implied rights that they insist is embodied in the Constitution. The disagreement, then, is not about the existence of such rights, but how they are read into the Constitution.