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, and (3) a customer service action like a voluntary recall.  Or, as Professor Rave puts it:

Functionally, what is happening with class settlements, voluntary compensation schemes, and mandatory arbitration clauses in form contracts is very similar. Private actors are effectively designing a system of

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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 not clear that these cases have done much more than shift some of the terms of early motions practice.  Given the promises we have heard that Concepcion in particular spelled the coming demise of the class action, how could this be the case?

Law professors … Continue Reading

 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 that (1) it is too expensive; (2) it does not teach one how to be a lawyer; and (3) it turns out too many lawyers for too few legal jobs. One could characterize all of these objections in economic terms like this: a profession like … Continue Reading

 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 it is hard to deny that law schools are facing a real crisis of legitimacy. As a very large consumer of legal scholarship, and a big fan of well-educated lawyers, this worries me.

From what I’ve seen, there are a few questions that espouse … Continue Reading

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 on the income guarantees for a number of partners. Some go so far as to worry about criminal conduct. And it seems clear that there was at least some level of mismanagement. (As usual, Adam Smith, Esq. has an outstanding discussion of the many … Continue Reading

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 a sequence of negotiations–some internal, some external–that ideally will bring about the desired big deal.

[C]onsider Boeing’s $11 billion sale of 787 Dreamliners and other planes to Air India in late 2005. A naïve understanding of this transaction might envision two monolithic entities, Boeing

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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 risk; one tactic will be to file a motion to strike class allegations.) A strategy (win this case by defeating certification) should also fit into a grand strategy (keep the defendant safe from meritless lawsuits by making sure courts enforce Rule 23 properly) that … Continue Reading

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.

Lilienthal’s primary argument, that corporate defendants in litigation cannot afford to ignore public relations, is hardly controversial today. There is no question that plaintiffs’ counsel consider public relations to be an important weapon in their arsenal against corporate defendants.  Nor is there any real question … 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

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 account the likelihood that the settlement will encourage the particular plaintiffs’ firm to sue again. In a recent article titled Law in the Shadow of Bargaining: The Feedback Effect of Civil Settlements, Duke Law School professor Ben Depoorter suggests a few other reasons why … Continue Reading