Calvin Cohen ’16 and Alex Nunn ’16 share 2016 Nagareda Prize for best scholarly papers in litigation and dispute resolution

May 13, 2016

2016 Nagareda Award to Calvin Cohen and Alex NunnCalvin Cohen ’16 and Alex Nunn ’16 have won Vanderbilt Law School’s 2016 Nagareda Prize for writing the best scholarly papers in the fields of litigation and dispute resolution.

“We are fortunate to honor two terrific papers this year. Each paper offers a rigorous analysis of an important—though quite different—research question. The resulting works are rich in their argument and clear in their prose. They were a pleasure to read and a testament to the quality of student research and writing here,” said Tracey George, who announced the winners. George, who holds the Charles B. Cox III and Lucy D. Cox Family Chair in Law and Liberty, directs the Branstetter Litigation and Dispute Resolution Program, which sponsors the annual award. The Nagareda Award’s name honors Richard Nagareda, the first director of the Branstetter Program, a nationally renowned complex litigation scholar who died in 2010.

Both of this year’s winning papers were published in the Vanderbilt Law Review.

Cohen was honored for his paper, “How to Assert State Sovereign Immunity under the Federal Rules of Civil Procedure” (69 Vanderbilt Law Review 761, 2016), in which he proposes a solution to the thorny procedural issues of state sovereign immunity in the aftermath of the Supreme Court’s 1996 decision in Seminole Tribe of Florida v. Florida. The Court’s 5-4 decision in that case established a doctrine that has, over the past 20 years, made it increasingly difficult for private parties to sue state governments and officials under federal law. In a series of subsequent decisions, Cohen writes, “the Supreme Court has…increasingly allowed this doctrine to immunize states and their officers from suits arising under the federal laws and sometimes even the Constitution” without offering lower courts any guidance about how to process such cases appropriately under the Federal Rules of Civil Procedure.

In the absence of procedural guidance, Cohen points out, federal courts have applied the doctrine of state sovereign immunity inconsistently. As a result, according to Cohen, courts diverge in their treatment of parties’ rights, a bad outcome that results not from the facts at issue in the cases before them, but rather from the courts’ own inconsistent applications of state sovereign immunity claims to the Federal Rules.

Rather than creating new rules to address state sovereign immunity cases, Cohen proposes that courts apply three different existing Federal Rules to three broad categories of cases: diversity jurisdiction cases (Rule 12(b)(1)), cases against state defendants arising under federal laws and the Constitution (Rule 12(b) (6)), and multiparty suits in which a state is one of the parties (Rule 12(b)(7)). “The main issue here is how courts read and apply state sovereign immunity to the Federal Rules,” Cohen said. “My proposal brings uniformity to what is currently a procedural boondoggle in federal courts.”

Cohen served as managing editor of the Vanderbilt Law Review in 2015-16. He plans to clerk for Judge Theresa Springmann of the U.S. District Court for the Northern District of Indiana in 2016-17. “My inspiration for this Note arose during my first-year summer externship with a federal district court judge, where a state entity asserted its sovereign immunity to dismiss a lawsuit in that court,” he said. “In researching that issue, I realized that state sovereign immunity was an incredibly complex procedural aspect of the federal court system, and that it could be made more coherent.”

Nunn’s prize-winning paper, “The Incompatibility of Due Process and Naked Statistical Evidence” (68 Vanderbilt Law Review 1407, 2016), contributes to a 40-year debate aimed at resolving the Gatecrasher’s Paradox, which British philosopher L. Jonathan Cohen used to illustrate a problem with the use of “naked statistical evidence” in legal cases. The paradox envisions a situation where 1,000 people attend a rodeo, but only 499 of them actually purchase a ticket to the event. There is thus a 50.1 percent chance that any given rodeo attendee did not buy a ticket, which might seem to offer enough evidence for a plaintiff to recover the cost of a ticket from all 1,000 people who attended the rodeo. However, since we know that 499 of the rodeo attendees bought tickets, solely using a statistic that shows an attendee is more likely to be a gatecrasher than a paying customer to recover damages from every member of the audience seems innately unfair.

Nunn approaches the Gatecrasher’s Paradox from the novel perspective of due process. He points out that a due process violation occurs whenever a prosecutor advances an irreconcilable theory in an attempt to secure simultaneous, mutually exclusive verdicts against multiple individuals, all of whom are accused of committing the same crime despite the fact that the prosecutor knows that only one of those individuals is indeed guilty.

“The absolute certainty that the prosecutor has presented a false impression in at least one of these trials renders each trial fundamentally unfair,” Nunn said.

Extrapolating from this principle, Nunn argues that “once the 502nd defendant is found liable as a gatecrasher, a due process violation is certain—at least one innocent rodeo attendee has been found liable.” He then expands this doctrine beyond the Gatecrasher’s Paradox to propose a rule that is broadly applicable to naked statistical evidence in general: “If the same naked statistical evidence could be used to convict any randomly selected member of the entire population, and the conviction of the entire population would constitute a due process violation, then there is no concrete barrier between recovery within the realm of the plausible and the realm of the impossible.”

In such circumstances, Nunn contends, “Holding even one defendant liable with such evidence should equally constitute a due process violation.”

Nunn served as editor in chief of the Vanderbilt Law Review during 2015-16 and plans to clerk for Judge Karen LeCraft Henderson on the U.S. Court of Appeals for the D.C. Circuit in 2016-17. “I was inspired to write this paper as my Law Review Note after lengthy discussions with Professor [Edward K.] Cheng on the topic,” he said. “The Note also served as a great motivation for further contributions to the evidence literature.”

“The moment after Evidence class one day in which Alex suggested this insight was almost magical — it was immediately clear to me that he was onto something exciting,” Cheng said. “Despite his explanation’s elegance and simplicity, in the countless pages in which scholars have puzzled over ‘naked’ statistical evidence, no one seems to have ever drawn the connection. His Note makes an important contribution on par with seasoned evidence scholars, and I daresay that no future work on the topic can legitimately proceed without citing it.”

Nunn and Cheng subsequently co-authored “DNA, Blue Bus, and Phase Changes,” which appeared in the peer-reviewed International Journal of Evidence and Proof in 2016, and they are currently working on a second article focusing on process-based evidence.


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