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Managerial Judging And Substantive Law, Tobias Barrington Wolff
Managerial Judging And Substantive Law, Tobias Barrington Wolff
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The figure of the proactive jurist, involved in case management from the outset of the litigation and attentive throughout the proceedings to the impact of her decisions on settlement dynamics -- a managerial judge -- has displaced the passive umpire as the dominant paradigm in the federal district courts. Thus far, discussions of managerial judging have focused primarily upon values endogenous to the practice of judging. Procedural scholarship has paid little attention to the impact of the underlying substantive law on the parameters and conduct of complex proceedings.
In this Article, I examine the interface between substantive law and managerial …
Preclusion In Class Action Litigation, Tobias Barrington Wolff
Preclusion In Class Action Litigation, Tobias Barrington Wolff
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"Despite the intense focus that courts and commentators have trained upon class litigation for the last twenty-five years, a central feature of the class-action lawsuit has received no sustained attention: the preclusive effect that a judgment in a class action should have upon the other, non-class claims of absentees. The omission is a serious one. If claim and issue preclusion were to operate in their normal mode when a claim is certified for class treatment, absentees would sometimes face a serious threat of having their high-value individual claims compromised. Such a threat, in turn, can create ex ante conflicts of …