In her new article Symmetry & Class Action Litigation, 60 UCLA L. Rev. 1494 (2013), Connecticut law professor Alexandra Lahav has spotted what appears to be an interesting inconsistency in the way modern courts treat class action: despite case law to the contrary, courts often treat certification of a litigation class more rigorously than certification
Alexandra Lahav
An Out-of-Date Tour of the “New Class Action Landscape”
By The Editors on
Posted in Certification
In years past, when I was a budding class-action nerd at O’Melveny & Myers, I used to look forward to the ABA’s annual convention on class actions. While I couldn’t go myself (not cost-justified for baby lawyers), John Beisner would always come back and circulate Professor John Coffee’s Five-Year Reviews of class action law. I…
The Problem with Trial by Formula
By The Editors on
Posted in Motions Practice
In Wal-Mart Stores, Inc. v. Dukes, Justice Scalia registered his disapproval of using statistics to litigate liability in a class action, writing
The Court of Appeals believed that it was possible to replace such proceedings with Trial by Formula. A sample set of the class members would be selected, as to whom liability for
…
Classic Scholarship – Class Action Cops
By The Editors on
Posted in Lawyers
For the last six or seven years, a growing academic literature has put forward the argument that the primary justification for class actions is not to compensate absent class members, but to deter corporate wrongdoing. That justification has formed the basis of a number of arguments, from Professor Fitzpatrick’s proposal that class action attorneys earn…
Ten Simple Ways to Improve Class-Action Scholarship
By The Editors on
Posted in Strategy
Last week, my post on the Ten Most Interesting Articles in 2011 got linked by Professor Alexandra Lahav at the fine Mass Tort Litigation Blog. She recommended my list of ten interesting but unwritten articles to students looking for notes topics, although she cautioned that
I don’t agree with Mr. Trask’s assessment of my
…
The Ten Most Interesting Class Action Articles of 2011
By The Editors on
Posted in Strategy
During the latter half of 2011, I was privy to the following exchange between a well-known law professor and a well-known practitioner:
PROFESSOR: Yes, I wrote a piece which concluded that the class action is dead. You heard it here.
PRACTITIONER: And yet plaintiffs keep filing the things …
That exchange (which I promise actually…
Rhetoric – Entities, Entrepreneurs, and Rogues
By The Editors on
Posted in Lawyers
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. …
Are Class Actions Unconstitutional? Depends Who You Ask
By The Editors on
Posted in Lawyers
Last year, I discussed Northwestern professor Martin Redish’s argument that class actions are unconstitutional. Redish had predicted–and I largely agreed–that the argument would fall on deaf ears. It turns out we were both wrong. Leaving aside those defense lawyers who adopted his arguments about the Rules Enabling Act, Alexandra Lahav of the University of…
Rhetoric – Does Size Matter?
By The Editors on
Posted in Certification
When the Supreme Court granted certioriari in Dukes v. Wal-Mart Inc., the Vanderbilt Law Review grabbed a number of law professors who study mass torts and asked them to contribute essays to its En Banc feature. One of these–Richard Nagareda’s Common Answers for Class Certification–was one of the most interesting articles published…