Brian T. Fitzpatrick: Milton R. Underwood Professor of Free Enterprise By Grace Renshaw
Brian T. Fitzpatrick has been fascinated by the judiciary since he began his legal career as a clerk, first for Judge Diarmuid O’Scannlain of the 9th Circuit Court of Appeals and then for Justice Antonin Scalia on the U.S. Supreme Court. He later worked in the U.S. Senate and in private practice at Sidley Austin in Washington, D.C. Fitzpatrick, who was appointed to the Milton R. Underwood Chair in Free Enterprise last summer, now teaches Complex Litigation and Federal Courts. His current research focuses on how best to allocate the power wielded by federal judges; his interest in that topic also provided the impetus for a seminar, Decentralized Versus Centralized Lawmaking, which he has taught for two years. “I like to use seminars to study topics I want to learn about, and I’m learning along with the students,” he said. “This seminar asks how to design the federal judiciary to allow judges to make the best decisions. Do we want power concentrated in the hands of a few judges, or do we want power decentralized in the hands of lots of different judges?” Among other topics, Fitzpatrick and his students are exploring universal injunctions, which Fitzpatrick finds troubling because they allow a single federal judge to preclude future litigation in any court. “When a president wants to do something, his opponents find one federal district judge
SANDY CAMPBELL
An expert in federal courts and complex litigation, Fitzpatrick examines judicial power and how to structure the judiciary to improve decision-making.
willing to enter an injunction that stops the administration from proceeding—and not only in that case, but anywhere. When one judge has the power to shut down all cases, it causes problems. Those problems are compounded when litigants can forum shop to find a judge they believe will decide the case in their favor.” Another challenging topic Fitzpatrick’s students tackle is multidistrict litigation, in which cases such as those arising out of the Volkswagen diesel emissions testing scandal are consolidated within a single district under a single judge. While this approach has the practical advantage of requiring only one judge to understand the facts and legal issues underlying the lawsuits, Fitzpatrick believes that limiting the number of judges has a significant downside: It also limits the varying perspectives a larger number of judges would bring to decisions. “About half
of all federal civil cases are wrapped up in multidistrict litigation,” he said. “When one judge does all of the pretrial proceedings for his or her cases, that judge can end up deciding what happens in thousands of cases.” Fitzpatrick joined the law faculty in 2007, and he has studied complex litigation for most of his academic career, publishing papers examining the virtues of private enforcement of the law, including class arbitration, classaction settlements and fee awards, and thirdparty litigation financing. His 2019 book, The Conservative Case of Class Actions, argued that class-action lawsuits play an important role in policing corporate behavior, especially when they are the only form of private enforcement possible. “Conservatives should prefer private enforcement of the law through class-action lawsuits for the same reason we favor other private-sector solutions,” he said.
Brian Fitzpatrick is the third VLS professor to hold the Milton R. Underwood Chair in Free Enterprise, which was endowed by the Fondren Foundation to honor Milton Underwood, Class of 1928. SPRING 2021
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