constitutional arguments

 Defendants often argue that limiting the evidence they can produce in a class action violates their rights to due process. It’s an argument we take very seriously, but since it’s usually not the centerpiece of the argument, many defense arguments mention the concept briefly and then move on to the intricacies of Rule 23 or rebutting the plaintiff’s particularly careless allegations.

DePaul Law professor Mark Moller has written an article for the Utah Law Review, "Class Action Defendants’ New Lochnerism," that looks to investigate the due process argument defendants usually advance. [Disclosure, Professor Moller and I were … Continue Reading

Last month, I received a flurry of email from various people who wanted to point me towards Mark Herrrman’s column on Above the Law, "Torpedoing Class Actions." In that column, Herrmann reviewed Martin Redish’s 2009 book Wholesale Justice, which argues that class actions are an unconstitutional delegation of state power to private lawyers. He also called class-action defense lawyers "derelict" and asked "Where is the practicing bar?" when it comes to advocating Redish’s arguments.

Where is the defense bar on these arguments? We’ve been here. I first took notice of Professor Redish’s book soon after I
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 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 Connecticut has now reviewed his book Wholesale Justice.

Lahav praises the book, but largely disagrees with its conclusions. Specifically, she takes issue with Redish’s argument that class actions violate separation of powers, and that they lack democratic accountability.

In arguing against Redish’s separation-of-powers critique, … Continue Reading

Bench trials comprise a significant percentage of class-action trials. And class-action defense lawyers are often conflicted about whether it’s better to try a case in front of a jury or a judge. A judge may be better equipped to sort through some of the more complex issues in the case, but sometimes complexity can favor the defense in front of a jury. Moreover, many defense lawyers consider a judge who has certified a class to have already stated some opinion on how the case should proceed.

So what do lawyers need to be aware of when trying a class trial … Continue Reading

That’s the question posed by a student note coming out from the Hastings College of Law in July. And the answer, according to author Joshus Stadler, is “No.”

Stadler’s primary argument is that the class action has its roots in equity, and was conferred its current status by the Rules Enabling Act, which does not enlarge or constrict any substantive rights. Since the Seventh Amendment only allows for jury trials for causes of action that existed in common law at the time of its adoption (generally, 1791), and the class action was given its modern status as a procedural … Continue Reading

Martin Redish is back in the news. In the past week, he’s been written up in Forbes and the ABA Journal, as well as a series of associated blog posts by academics like Elizabeth Chamblee Burch. The Forbes profile – which kicked off the coverage – quotes him as saying that the rights held by class action litigants:

are individually held rights … What a lot of class action scholars and proponents have done–quite cleverly, I must say–is engage in a sort of alchemy to transform individual rights into collective rights.

The Forbes profile doesn’t focus on any particular work … Continue Reading