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Articles 1 - 11 of 11
Full-Text Articles in Law
Calibrating Participation: Reflections On Procedure Versus Procedural Justice, Elizabeth Chamblee Burch
Calibrating Participation: Reflections On Procedure Versus Procedural Justice, Elizabeth Chamblee Burch
Elizabeth Chamblee Burch
Judging Multidistrict Litigation, Elizabeth Chamblee Burch
Judging Multidistrict Litigation, Elizabeth Chamblee Burch
Elizabeth Chamblee Burch
Revisiting The Government As Plaintiff, Elizabeth Chamblee Burch
Revisiting The Government As Plaintiff, Elizabeth Chamblee Burch
Elizabeth Chamblee Burch
This is a symposium essay dedicated to the late Richard Nagareda and written in response to Adam S. Zimmerman's piece, The Corrective Justice State. As Professor Zimmerman recognizes, the debate over governments acting as plaintiffs and “regulating by deal” has shifted from initial questions over whether litigation produces the best public policy and whether executive officials are acting within the scope of their authority to how government actors should pursue and allocate settlements. Yet, as this first wave of controversy suggests, the slate upon which executive officials currently write is neither clean nor uncontroversial. Instead, this new debate is playing …
Disaggregating, Elizabeth Chamblee Burch
Disaggregating, Elizabeth Chamblee Burch
Elizabeth Chamblee Burch
Commonality is a defining characteristic of mass-tort litigation. But mass-tort claimants typically do not share enough in common to warrant class certification. That is, commonality does not predominate. Yet, without class certification, judges cannot conclude these cases as a unit absent a private settlement. This paradox prompts two questions. First, what level of commonality justifies aggregating mass torts, shorn of Rule 23’s procedural protections? And, second, should the federal judicial system continue to centralize claims with nominal commonality when judges typically cannot resolve them collectively absent a private settlement? This Article’s title suggests one answer: if minimal commonality continues to …
Adequately Representing Groups, Elizabeth Chamblee Burch
Adequately Representing Groups, Elizabeth Chamblee Burch
Elizabeth Chamblee Burch
Financiers As Monitors In Aggregate Litigation, Elizabeth Chamblee Burch
Financiers As Monitors In Aggregate Litigation, Elizabeth Chamblee Burch
Elizabeth Chamblee Burch
This Article identifies a market-based solution for monitoring large-scale litigation that proceeds outside of Rule 23’s safeguards. Although class actions dominate the scholarly discussion of mass litigation, the ever-increasing restrictions on certifying a class mean that plaintiffs’ lawyers routinely rely on aggregate litigation (through multidistrict litigation and liberal joinder devices like Rules 20 and 42) to seek redress for group-wide harms. Despite sharing key features with its class-action counterpart, lik fe attenuated attorney-client relationships, attorney-client conflicts of interest, and high agency costs, no monitor exists in aggregate litigation. Informal group litigation not only lacks Rule 23’s judicial protections against attorney …
Litigating Together: Social, Moral, And Legal Obligations, Elizabeth Chamblee Burch
Litigating Together: Social, Moral, And Legal Obligations, Elizabeth Chamblee Burch
Elizabeth Chamblee Burch
In a post-Class Action Fairness Act world, the modern mass-tort class action is disappearing. Indeed, multi-district litigation and private aggregation through contracts with plaintiffs’ law firms are the new mass-tort frontier. But something’s amiss with this “nonclass aggregation.” These new procedures involve a fundamentally different dynamic than class actions: plaintiffs have names, faces, and something deeply personal at stake. Their claims are independently economically viable, which gives them autonomy expectations about being able to control the course of their litigation. Yet, they participate in a familiar, collective effort to establish the defendant’s liability. They litigate from both a personal and …
Procedural Adequacy, Elizabeth Chamblee Burch
Procedural Adequacy, Elizabeth Chamblee Burch
Elizabeth Chamblee Burch
This short piece responds to Jay Tidmarsh’s article, Rethinking Adequacy of Representation, 87 Texas Law Review 1137 (2009). I explore Professor Tidmarsh’s proposed “do no harm” approach to adequate representation in class actions from a procedural legitimacy perspective. I begin by considering the assumption underlying his alternative, namely that in any given class action both attorneys and class representatives tend to act as self-interested homo economicus and we must therefore tailor the adequacy requirement to curb self-interest only in so far as it makes class members worse off than they would be with individual litigation. Adopting the “do no harm” …
Litigating Groups, Elizabeth Chamblee Burch
Litigating Groups, Elizabeth Chamblee Burch
Elizabeth Chamblee Burch
A New Way Forward: A Response To Judge Weinstein, Elizabeth Chamblee Burch
A New Way Forward: A Response To Judge Weinstein, Elizabeth Chamblee Burch
Elizabeth Chamblee Burch
This short essay responds to Judge Jack Weinstein's essay, Preliminary Reflections on Administration of Complex Litigations, 2009 Cardozo De Novo 1. In so doing, it also provides a condensed version of my earlier article, Litigating Groups, which analyzes group dynamics within nonclass aggregation. By drawing on the literature of moral and political philosophy as well as social psychology, I contend that, in the face of hard cases, of instability and disunity, plaintiffs who have made promises and assurances to one another can invoke social norms of promise-keeping, social agglomeration, compatibility, and the desire for means-end coherence to achieve consensus, mitigate …
Procedural Justice In Nonclass Aggregation, Elizabeth Chamblee Burch
Procedural Justice In Nonclass Aggregation, Elizabeth Chamblee Burch
Elizabeth Chamblee Burch
Nonclass aggregate litigation is risky for plaintiffs: it falls into the gray area between individual litigation and certified class actions. Although scholars have formulated procedural protections for both extremes, the unique danger and allure posed by nonclass aggregation has been undertheorized, leaving mass tort claimants with inadequate safeguards. When hallmark features of mass torts include attenuated attorney-client relationships, numerous litigants, and the demise of adversarial legalism, the attorney-client relationship itself becomes another bargaining chip in the exchange of rights. This Article takes the initial steps toward advancing a cohesive theory of procedural justice in nonclass aggregation by exposing the problem …