This term, the Supreme Court will review several class action cases. In one of those, Genesis HealthCare Corp. v. Symczyk (technically, an FLSA collective action, but a ruling either way will likely have wider significance) it will decide whether a defendant can moot a class action by offering full relief to a class representative. The case has received a lot of attention, in no small part because plaintiffs are worried about the practice of "picking off" named plaintiffs. On the other side, defendants would like to preserve one of the best tools they have for avoiding nuisance suits.

Last … Continue Reading

Back over the summer, I was approached to blurb Paul Karlsgodt’s now-published World Class Actions: A Practitioner’s Guide to Group and Representative Actions around the Globe, which I did happily. Here’s the text of the blurb:

World Class Actions is a comprehensive and practical look at everything a class-action litigator needs to know about mass litigation in other countries. In an increasingly globalized world, this is a book no international lawyer should be without.

That was the two sentences that would fit on the back of a book cover, and I meant every word. This, however, is a (long-overdue) … Continue Reading

 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

 Dreaded deadline doom on a few projects (and some actual paying work) means that, unfortunately, today’s post will have to be light on original content.  

Fortunately, Judge Posner has an excellent review of Justice Scalia’s new book up at The New Republic, so I can just direct you there.  It’s classic Posner, and includes one of the most lucid critiques I’ve read on originalism:

The decisive objection to the quest for original meaning, even when the quest is conducted in good faith, is that judicial historiography rarely dispels ambiguity. Judges are not competent historians. Even real historiography

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 Busy week means that this will be a brief post.  So I thought I might at least make it entertaining.  Several members of the Cornell Department of Computer Science []  have published a paper in the Proceedings of the 50th Annual Meeting of the Association for Computational Linguistics titled You Had Me at Hello: How Phrasing Affects Memorability, which analyzes memorable movie quotes to see what makes them stick.  

The money quote:

In fact, comments provided by the human sub- jects as part of the task suggested two basic forms that such textual signals could take: subjects felt

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Last week, NERA Economic Consulting released its latest mid-year report on trends in class-action securities filings. The trend most are mentioning is the decline in the pace of securities settlements, coupled with the fact that settlement amounts remain high. But there are a number of other interesting observations that are worth mentioning. Among them:

Of the cases that settled, 90% had a motion to dismiss filed and 42% had motion for class certification filed.

(Emphasis added.) This makes a degree of sense. A failed motion to dismiss would help the defendant to understand whether a legal theory has merit … Continue Reading

 Last week, Senator Al Franken (D-Minn) proposed a bill that would partially reverse the Supreme Court’s opinion in Wal-Mart Stores, Inc. v. Dukes.

According to Senator Franken’s press release, the Equal Opportunity Employment Restoration Act (good title) would add a section 4201 to 28 U.S.C.:

Section 4201(a) creates a new judicial procedure – called “group actions” – that workers can use when bringing employment discrimination cases. The requirements for establishing a group action are the same as the pre-Dukes requirements for maintaining a class action under Rule 23 of the Federal Rules of Civil Procedure—namely,

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 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