Despite my best intentions, I have not been posting here as often as I would like in the past few months. But that does not mean that I have not been reading. So, in lieu of a long-winded analysis of some new tactic, trend, or article, please accept the following capsule reviews of three of the more interesting and practical class action articles from the last few months:
This past Supreme Court Term included several closely-watched cases. One of the most studied was Tyson Foods v. Bouaphakeo, in which the Court identified at least one area of class action litigation where using statistical evidence instead of plaintiff-specific evidence might be allowed when determining class certification.
Since the Court issued its opinion, defendants have–as one would expect–worked hard to limit the Court’s holding to its specific facts. (Not necessarily a difficult task, since the Court itself tied its result closely to the statute underlying the Tyson Foods plaintiffs’ claims.) And, of course, plaintiffs and plaintiff-specific scholars have worked … Continue Reading
Many class-action commentators (including this blog) spend much of their time focusing on class action in federal courts: what caselaw controls, what arguments tend to work. They spend far less time on what happens to those defendants who–for one reason or another–find themselves in state court. There are sound reasons for this. The fifty states have very different class action regimes, ranging from tracking the Federal Rules to prohibiting them entirely. And, thanks to the Class Action Fairness Act, state court cases are either truly local controversies, or are smaller-stake cases worth less than $5 million.
That doesn’t mean … Continue Reading
Rule 23(c)(4) has been been placed under a microscope in the past few years, largely because of the judicial response to the Supreme Court’s Comcast Corp. v. Behrend opinion, and the Rules Advisory Committee’s subsequent consideration of possible amendments to the Rule.
In the course of that attention, two articles have come out that illustrate the contours of the debate over the proper scope of issue certification. They are particularly instructive when you look at them together.
… Continue ReadingNarrative theory answers the complex question of why narratives are persuasive. Narrative theory
One of the things that makes legal academia so frustrating to practitioners (and possibly courts) is that much of it appears to focus on easily-researched questions, instead of the genuinely difficult questions that would yield some practical use.
Case in point: there is remarkably little scholarship that takes on the question of how litigators actually litigate cases. And that’s what makes Lynn Lopucki’s and Walter Weyrauch’s 2000 article A Theory of Legal Strategy so unique. Almost no other legal article has attempted to take on the question of how strategy fits into the development of the common law. … Continue Reading
Plaintiffs’ lawyer-turned-professor Morris Ratner has published a new article on making litigation costs a profit center for class action plaintiffs. You may remember he wrote about this issue before with Professor William Rubinstein. This new article, titled Class Counsel as Litigation Funders, makes it clearer that he isn’t talking so much about allowing plaintiffs’ counsel to charge a markup on photocopies as he is trying to establish parity between the lawyers who fund a case by fronting the costs and the lawyers who work a case. (Remember, in larger cases, many lawyers are required by co-counsel to contribute to … Continue Reading