News

     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.

     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      The first resolution, originally proposed but withdrawn in February, updated decades-old rules concerning legal referral projects.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. 

      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.  

     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.

     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.

     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.

     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.

     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.

      CCL President Robert S. Peck explained the process the justices follow in drafting opinions to explain why the draft decision in the Mississippi abortion case can be authentic but not final for WUSA-9, the CBS affiliate in Washington, DC.

      As Peck explained, the chief justice or the most senior justice in the majority assigns the opinion, which, once a draft is completed, is circulated to the other justices. Some justices will join immediately; others will agree with its thrust by ask for changes. Still, others who are planning to dissent will incorporate responses to some of the arguments in the draft opinion. This process of back and forth continues until final opinions, majority, concurring, and dissenting, are complete.

      CCL President Robert S. Peck discussed four key ingredients to "The Art of Rebuttal" in a post to the Appellate Advocacy Blog, sponsored by the Law Professor Blog Network, to which he contributes every two weeks. 

      Peck's essential advice was to answer your opponent's best argument, answer questions posed by the judges to your opponent, don't waste time reiterating a point the judge has already made for you, and don't feel the need to use all of your time.