Houston law professor D. Theodore Rave’s new paper Settlement, ADR, & Class Action Superiority (forthcoming from the Journal of Tort Law) contains an interesting insight about class action practice: when you get right down to it, there is little functional difference between (1) a class action settlement, (2) an AT&T "gold-plated" arbitration clause
The Puzzling Continued Existence of Class Actions – Grand Strategy and Arbitration Clauses
Both AT&T Mobility LLC v. Concepcion and American Express Co. v. Italian Colors Restaurants have been accused of bringing about the death of the class action.
Few would question that these opinions have made it more difficult to casually sue cell phone or credit card companies. But past that fairly obvious conclusion, it’s
Should Law School Be More Like War College?
I’ve written before about the current crisis in legal education. And I write from the perspective of an interested bystander. I like the idea of well-educated lawyers, but I also think that legal scholarship is often impractical and insufficiently strategic.
Moreover, it seems that the standard complaints about law school at this point are
Five Ways to Mitigate the Crisis in Legal Education
In the past year, there has been a spate of criticism of legal education. The upshot: it’s too expensive, it doesn’t actually train new lawyers, and it produces a lot of scholarship of no use to practitioners or judges. Pair this rising criticism with rising educational costs and rising legal unemployment, and
Dewey Lebeouf, Grand Strategy, and Bad Strategy
For the last three months, much of the law-firm world has been watching the slow-motion train wreck that was the dissolution of Dewey & LeBeouf. The legal blogosphere has written a lot about what the collapse means, and offered numerous theories about why Dewey failed so spectacularly in only a few months. Most focus
Insight from Other Strategists – The Negotiation Campaign
Negotiation consultants David Lax and James Sibelius, authors of the excellent book 3D Negotiation, have a new working paper out on what they call the "Negotiation Campaign." In it, they argue that the most successful negotiators do not consider their jobs to involve a single, big negotiation. Instead, they are engaged in
Framing the Certification Opposition – Ross v. RBS Citizens NA
Today’s case is a perfect illustration of the difference between tactics and strategy, or, more accurately, between litigation strategy and litigation grand strategy. As you may remember, a tactic is a plan to accomplish a specific short-term goal within a larger conflict. (A defendant may have the strategy of defeating certification to minimize litigation
Classic Scholarship – Litigation Public Relations
This month’s piece of "Classic Scholarship" constitutes a small exception. It’s not exactly scholarship (it was adapted from a speech), and it doesn’t focus exclusively on class-action practice. Nonetheless, Deborah Lilienthal’s Litigation Public Relations: The Provisional Remedy of the Communications World, 43 N.Y.L. Sch. L. Rev. 895 (2000), contains some important insights for class-action practitioners.
Insight from Other Strategists – Branch Rickey & Billy Beane
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
Are Large-Case Settlements Worth It? – Law in the Shadow of Bargaining
One of the earliest questions a defendant must face when litigating a class action is whether to fight or settle. Most lawyers worth their salt would advise their clients to look at the costs of litigating the case, and balance that against the expected payout (damages discounted by the probability of losing), perhaps taking into