We’re in the middle of the holiday season, and that means that folks are making (or, for those who celebrate Hannukkah, checking off) their wish lists. This October, the Chamber of Commerce’s Institute for Legal Reform compiled one of their own in their report A Roadmap for Reform: Lessons from Eight Years of the
scholarship
Overreaching, Underreaching, and the Supreme Court
In the past few years, Professor Mark Moller of DePaul University Law School has proven to be one of the most thoughtful critics of modern class action law in the legal academy. While most commentators take on class action decisions from either a pro-plaintiff or pro-defendant standpoint, Professor Moller appears intent on evaluating these opinions…
The Problem with Asymmetric Analysis of Class Actions
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…
The Unruly Class – The Structural Argument against Issue Certification
In the wake of Wal-Mart Stores v. Dukes, Judge Posner certified a class of African-American brokers who claimed racial discrimination solely for the purpose of determining whether a pair of compensation policies were discriminatory. Since the publication of that opinion–McReynolds v. Merrill Lynch–the topic of how to deal with the possibility of…
Justifying Defendant’s Due Process in Class Action Litigation
In the past few years, the legal academy has become more concerned with the question of how exactly a defendant’s due process rights play out in the class action context.
Last year, DePaul Professor Mark Moller (whose pedigree does not suggest an immediate kinship with plaintiffs’ attorneys) asked whether the due process arguments defendants invoke…
Ronald Coase, 1910-2013
Ronald Coase, who passed away on September 2, was one of the great thinkers in both law and economics, and pioneered the application of economics to law. For some of that work (involving the theory of the firm and the role of transaction costs in regulation) he deservedly won a Nobel Prize in Economics. …
The Class Action as Trust – Two Views
Plaintiff and defense lawyers tend to talk past each other a lot when discussing the legal theories underlying the class action. Plaintiffs talk of deterrence, and the need for easier certification requirements. Defendants talk about potential abuses of the device, and the need for due process. Plaintiffs prefer the "entity theory" of class actions. Defendants…
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…
The Dark Side of Class Action Mediators
Many observers of class actions (including me) have promoted the use of mediators in negotiating class action settlements. Properly used, a mediator can not only help the sides reach agreement, but also document that the process underlying the settlement was fair, reasonable, and adequate.
Hamline Law School Professor James Coben has…
Arthur Miller and the Deformation of Federal Procedure
Earlier this year, Professor Arthur Miller published a summary of developments in civil procedure over the last several years, entitled Simplified Pleading, Meaningful Days in Court, and Trials on the Merits: Reflections on the Deformation of Federal Procedure.
Professor Miller is one of the giants of civil procedure. He may or may not have…