Despite the warnings, Wal-Mart Stores, Inc. v. Dukes did not herald the end of the class action, or even class action scholarship. Indeed, new debates have risen in its wake. One of the most interesting is what to do about classes where large numbers of class members might not have suffered any injury. Courts do certify these cases, for settlement purposes if nothing else. But should they?

One plaintiff attorney-scholar group (Joshua Davis, Eric Cramer, and Caitlin May) says "yes." In their paper The Puzzle of Class Actions with Uninjured Members, they argue that … 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, Vanderbilt professor Brian Fitzpatrick made the bold argument that class action plaintiffs’ attorneys aren’t paid enough. Now, the University of Pennsylvania Law Review’s online presence, PENNUmbra, has a response by University of Arizona professor David Marcus

Marcus levels several criticisms against Fitzpatrick’s proposal. I’m going to ignore the easy ones and focus on two of his more interesting arguments. First, Marcus focuses on the effect of the Rules Enabling Act:.

Fitzpatrick believes that Federal Rule of Civil Procedure 23(h), which licenses "reasonable" fee awards in class actions, permits courts to do what he urges. But the

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Skadden attorneys John Beisner, Jessica Miller, and Jordan M. Schwartz have drafted a white paper for the Institute for Legal Reform titled “Cy Pres: A Not So Charitable Contribution to Class Action Practice.”  Relying heavily on Martin Redish’s critique of cy pres recovery, they trace cy pres relief from its “pre-Christian” origins as a means of distributing estates to its most recent abuses. Their final recommendation is interesting, and fairly moderate:

in order to mitigate the legal and ethical concerns associated with cy pres awards, any application of the cy pres doctrine—even in the

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