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The Ten Most Interesting Class Action Articles of 2013

Posted in Scholarship

At this point, I’m well aware that I tend to sound like an old crank when reviewing class action scholarship; much of it repeats the same old stuff, predicts the imminent demise of the class action in its current form, and looks at the same Supreme Court cases instead of digging into where the real action happens. And that is why I am happy to report that this year, there were quite a few articles that did take different approaches to various problems in class actions. Yes, we still had some of the same Supreme Court rehashes, but even some of them (such as Professor Moller’s) had something new to say. And, in some cases (like the pairing of Professors Campos and Redish), work from scholars of different ideological bents produced similar suggestions. That’s interesting. So, without further ado, the ten most interesting class action articles of 2013:

(1) The History of the Modern Class Action, Part I: Sturm und Drang, 1953-80, by David Marcus (Wash. U. L. Rev.). This is, quite simply, one of the best pieces of class-action scholarship of this or any year. Instead of reaching for a way to cast an old argument as a new theory, it provides original research covering 27 formative years of class-action practice, and demonstrates that many of the arguments litigators advance today are just revisiting the same debates from fifty years ago.

(2) Common Problems for the Common Answers Test: Class Certification in Amgen & Comcast, by Mark Moller (Cato S. Ct. Rev.). Usually, reviews of previous Supreme Court cases don’t really provide much interest, since most class-action lawyers can read the opinions for themselves. But Professor Moller’s analysis of how the Court either "overreached" or "under reached" in two of its major cases this year dives much deeper into class-action history and litigation tactics than most. That makes it well worth a read.

(3) Simplified Pleading, Meaningful Days in Court, & Trials on the Merits: Reflections on the Deformation of Federal Procedure, by Arthur Miller (NYU L Rev). This article makes the list because of its author; it’s primarily a jeremiad bemoaning the fact that cases don’t make it to trial anymore. But it’s Arthur Miller doing the bemoaning. And on top of being a renowned civil procedure scholar, he’s also the head of Milberg Weiss’s appellate group. This is the best look you’re going to get at how plaintiffs’ counsel justify various class action tactics.

(4) Adequately Representing Groups, by Elizabeth Chamblee Burch (Fordham L. Rev.). Adequacy tends to be either overlooked (by pro-certification scholars) or heavily-emphasized (by pro-defense scholars). But rarely do we see full analyses of the adequacy requirement that focus on primary purpose–making sure that classwide rulings can hold up after the fact. Professor Burch’s preclusion-based discussion draws several interesting conclusions which will likely annoy partisans on both sides; that’s usually a good sign of an interesting paper.

(5) & (6) Avoiding Death by a Thousand Cuts: The Relitigation of Class Certification & the Realities of the Modern Class Action, by Martin Redish & Megan Kiernan (Working Paper), and Class Actions & Justiciability by Sergio Campos (Fla. L. Rev.). These two articles made the list because of each other. The concept of treating class counsel as the real party in interest in a class action–either for standing or preclusion–is a little outlandish. But it reflects the realities of litigation, and it’s now an idea being pushed by scholars sympathetic to both plaintiffs and defendants. I’m not entirely sure what that says, but it sure says something.

(7) Dynamic Litigation Analysis: Predicting Securities Class Action Settlements as a Case Evolves, by Ronald Miller (NERA Paper). Real, unbiased, agenda-free empirical analysis is always interesting. Dr. Miller’s analysis of how securities class actions proceed, particularly in how the value of these cases evolves depending on the strategies employed, offers a number of interesting correlations that should provide much food for thought. We could use more scholarship like this.

(8) Creating a 21st Century Oligarchy: Judicial Abdication to Class Action Mediators, by James Richard Coben (Penn St. Y.B. Arb. & Mediation). Professor Coben’s article is interesting because of the perspective it takes. Regardless of how one feels about the efficacy of class actions, few counsel I know would take on mediators as a group. But Coben’s argument that mediators who offer affidavits about the settlements they oversee have a difficult conflict of interest makes some good points, and also offers some practical solutions. 

(9) Better Bounty Hunting: How the SEC’s New Whistleblower Program Changes the Securities Fraud Class Action Debate, by Amanda M. Rose (Working Paper).  Professor Rose’s article looks at a relatively new development in securities law–the development of the SEC’s Whistleblower Bounty Program–and how it will affect the conduct of securities class actions. She argues that, if courts take the superiority inquiry seriously, the development of the program will reduce the number of securities class actions certified, because the program strips them of their essential benefits. The entrenched interests of the securities bar may ultimately prove her wrong, but it won’t be because of the logic of her argument.

(10) Cy Pres Comme Possible to Anything is Possible: How Cy Pres Creates Improper Incentives in Class Action Settlements, by Jennifer Johnston (J. L. Econ. & Pol’y). Law student Jennifer Johnston wrote an excellent comment examining the incentives created by cy pres relief. In a year when it became clear that the courts are likely to take on the cy pres issue in greater depth, Johnston’s comment provides good background and some interesting perspectives.

I hope everyone had a happy New Year. Regularly scheduled, non-list entries will resume next week.