Class Action Countermeasures
The Ten (Most) Interesting Class Action Articles of 2012
2012 was a tough year for the legal academy. A number of damning critiques were written of how law schools are not sustainable in their current form. And that difficult year is reflected in the academic output on class actions. For the second year running, there just wasn't that much that merited the title "interesting" in class-action scholarship. I'm honestly stymied as to why that is. I can think of plenty of interesting questions about class actions that the academy appears singularly unconcerned with, preferring instead the same old rehashes of the same few topics.
But enough of my complaining. Here are the ten articles I found most thought-provoking this year.
- Professor Issacharoff's Assembling Class Actions was interesting mostly because it is an eminent scholar's take on recent developments in class-action law. It's marred by some downright misreadings of the law (such as the holding in Eisen), but it also contains some interesting takes on the fight over the entity theory of class actions.
- Similarly, Dean Robert Klonoff's Decline of Class Actions is worthwhile because (1) the man who writes the Nutshell on class action law probably knows what he's talking about, and (2) he identifies a number of trends (like rulings on numerosity) that most scholars tend to ignore.
- Gilles on Arbitration. Professor Gilles was the first to identify the impact that arbitration clauses would have on class action practice, so it makes sense that her return to the subject would be worth reading. A good, partisan, but intellectually honest examination of how arbitration clauses have fared since Concepcion.
- Moller on Due Process. Professor Moller's investigation of what "due process" really means in class litigation was uncomfortable for defense counsel, but rigorous, intellectually honest, and thought-provoking.
- David Webber's The Plight of the Individual Investor in Securities Class Actions is another good look at the problems that arise from using institutional investors as class action plaintiffs. It's particularly interesting when paired with Professor Burch's piece last year on Optimal Lead Plaintiffs.
- Eric Goldman's piece on The Irony of the Privacy Class Action looked at a peculiar tension in class litigation--what happens when the substance of a particular class action conflicts with the mechanics of the class device.
- Law students on binding stipulations. Two law student comments provided some interesting insights on how and when a named plaintiff might be able to limit the recovery of a class consistent with their fiduciary duties to absent class members. These comments serve as continuing proof that law students are often willing to pursue the truly interesting issues that professors pass by.
- The Agency Class Action is an interesting application of Rule 23 to another area with some strong similarities--administrative law. And the analysis may have some interesting implications for class action defense.
- Hogs Get Slaughtered. Professor Sherry identifies an interesting strategic problem for plaintiffs' lawyers (and maybe defense lawyers, too). Long-term strategy would dictate that plaintiffs would want to pursue modest goals--enough to give them an edge, but not so much that they kill the golden goose. That's not what actually happens, though. Plaintiffs--and defendants, too--overreach doctrinally, with consequent results.
- The 2012 Carlton Field survey of class action litigation. Technically, this might not be considered an article, but it was still important research on class actions, and provided some interesting conclusions to boot.
The good stuff this year was good, but it still distresses me that I could have left the "most" off this list without sacrificing accuracy. There are a lot of law schools, who charge a lot of tuition, which goes to pay a lot of professors, who justify their salaries in part by pointing to their research. Assuming one class action professor on each faculty for the 201 ABA-approved JD-conferring law schools, I should have been spoiled for choice in making this list.
I don't like being one of the people who says the legal academy doesn't live up to its potential. I like the idea of independent legal research. I still look forward to seeing what new articles come out on class action law (which tells you what kind of nerd I am). So I say this from the perspective of a disappointed consumer: get it together, will you guys?