This month’s piece of classic scholarship comes from the sociology of law. Thirty years ago, William L.F. Felstiner, Richard L. Abel, and Austin Sarat published a piece in the Law & Society Review titled "The Emergence and Transformation of Disputes: Naming, Blaming, Claiming …

The authors wanted to trace how experiences transform into legal disputes. And they identified three key steps along the way:

  • Naming — the party recognizes that she’s been injured, or, as the authors put it, recognizes an experience as injurious;
  • blaming — she figures out that someone else is responsible for her
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 I’ve made no secret about the fact that one of the purposes of this blog is to delve into how the other side thinks.  And I’ve also emphasized the fact that it’s important to keep an open mind when considering one’s adversaries in litigation.  So I was pleased to hear that plaintiffs’-lawyer-turned-academic Morris Ratner was working on a piece that would discuss how plaintiffs’ firms operate today.

Unfortunately, Ratner’s working paper–A New Model of Plaintiffs’ Class Action Attorneys–promises a heck of a lot more than he delivers. There is no "new model." Instead, he offers a critique … Continue Reading

Cardozo law professor Lester Brickman has been a longtime critic of the contingency fee system. So it’s no surprise that his latest work, Lawyer Barons: What Their Contingency Fees Really Cost America (introduction here), has a lot to say about how contingency fees skew the incentives of plaintiffs’ lawyers. Among the most interesting observations he makes:

Many contingency fees don’t reflect actual risk. Brickman documents how often, lawyers don’t bear the risk of not getting paid, in part because of "careful case selection." This is not shocking; most plaintiffs’ lawyers admit readily to being selective about the cases they … Continue Reading

Billy Beane Branch Rickey

So, it’s the end of September. Let’s talk baseball. And, since my beloved Red Sox have reverted to their old habits, we’re not going to focus on this season. Instead, we’re going to go back nine years and sixty-four years. And we’re going to talk about two general managers. Billy Beane (the Brad Pitt of baseball management) and Branch Rickey (the Edward Herrman of baseball management). Between the two of them, these baseball managers came up with at least three innovations that changed the way the game was played. What were they?

Moneyball. What do you … Continue Reading

 This is a tough year to be entering law school. Tuition is more expensive than ever. The job market for entering lawyers is worse than ever. And the combination of technology and cost pressures is changing the legal profession in ways that even longtime veterans have trouble getting their heads around. It’s tough enough that the hot new legal blog is Professor Paul Campos’s Inside the Law School Scam.

When young pre-laws (or 0Ls, as some call them) have asked my advice over the last decade, I’ve usually cautioned them to think long and hard about law … Continue Reading

It’s no secret that most class action plaintiffs and defendants usually view each other with great suspicion from across a great divide. (I can’t say all; I have a few good friends among the plaintiffs’ bar, and I think quite highly of several plaintiffs’ lawyers regardless of any substantive disagreements.) What may be surprising, though, is research that shows that this mutual distrust not just a paycheck-induced mental state, but a smart choice for both clients and the lawyers themselves.

At least, that’s what a recent set of experiments conducted by several business professors suggests. Authored by Professors Sandy JapContinue Reading

[Note: Many thanks to the folks at the WLF Legal Pulse for asking me to write this entry. It’s cross-posted there.]

Given the stakes of class actions, which transform small-dollar claims into bet-the-company litigation, settlements are hardly unusual. And given the minuscule recoveries most class members receive compared to their lawyers’ multi-million paydays, neither are objections to those settlements. What is unusual is for a court to reject a settlement because of these objections. And what’s even more unusual is for the court to put a small doctrinal booby trap into its rejection. But last week, the Second Circuit … Continue Reading

 Law professor Geoffrey Hazard is well-known in legal and academic circles as an expert on civil procedure and legal ethics. So when he (with co-author Dana Remus) writes an article on the use of rhetoric in civil litigation, it’s well worth reading, even if it never mentions class actions specifically.

The problem that Hazard and Remus set themselves up to address is whether recent ethical lapses by lawyers (including some covered here) can be prevented by stronger ethics rules, or by moving away from the adversarial system of litigation. Hazard and Remus argue that the best solutions to Continue Reading

 "Hey man, I don’t practice law. I talk on the phone." — Richard Scruggs, on federal wiretap

This week, Class Action Countermeasures introduces another regular feature: book reviews. Once a month, I’ll be reviewing a book that has some relation to class action litigation. The primary purpose of the review will be to determine what class-action lawyers can learn that will assist them in formulating class-action defense strategies. (I’ve done this once or twice before.) First up is The Fall of the House of Zeus: The Rise and Ruin of America’s Most Powerful Trial Lawyer, by Curtis Wilkie.

The Continue Reading

As I’ve discussed before, there are few areas of law as polarized as class actions. The plaintiff and defense bars in class-action law rarely agree on anything, from the proper scope of Rule 23 to what a class action is in the first place. And I’m not the only one to have noticed this divide. Connecticut law professor Alexandra Lahav recently published an essay in the Fordham Law Review on "Two Views of the Class Action."

Lahav’s essay could improve from more focus.  She winds up talking about two different pairs of competing views–one of class actions, and … Continue Reading