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De Facto Class Actions: Plaintiff-And Defendant-Oriented Injunctions In Voting Rights, Election Law, And Other Constitutional Cases, Michael T. Morley
De Facto Class Actions: Plaintiff-And Defendant-Oriented Injunctions In Voting Rights, Election Law, And Other Constitutional Cases, Michael T. Morley
Faculty Scholarship
No abstract provided.
The Absence Of Legal Ethics In The Ali's Principles Of Aggregate Litigation: A Missed Opportunity - And More, Nancy J. Moore
The Absence Of Legal Ethics In The Ali's Principles Of Aggregate Litigation: A Missed Opportunity - And More, Nancy J. Moore
Faculty Scholarship
There is little discussion of legal ethics in the American Law Institute’s recently adopted Principles of Aggregate Litigation, either in the black-letter rules or the comments. The primary exception is that the Principles devote several sections to the so-called aggregate settlement rule (Rule 1.8(g) of the ABA Model Rules of Professional Conduct), although the purpose of these sections appears to be a proposed modification of that rule to permit claimants to agree in advance to be bound by majority approval of a particular settlement. The purpose of this essay is not to discuss the controversial aggregate settlement proposal (which the …
Cy Pres Relief And The Pathologies Of The Modern Class Action: A Normative And Empirical Analysis, Samantha Zyontz, Martin H. Redish, Peter Julian
Cy Pres Relief And The Pathologies Of The Modern Class Action: A Normative And Empirical Analysis, Samantha Zyontz, Martin H. Redish, Peter Julian
Faculty Scholarship
Since the mid 1970s, federal courts have taken the doctrine of cy pres relief from the venerable law of trusts and adapted it for use in the modern class action proceeding. In its original context, cy pres was utilized as a means of judicially designating a charitable recipient when, for whatever reason, it was no longer possible to fulfill the original goal of the maker of the trust. The purpose of cy pres was to provide “the next best relief” by finding a recipient who would resemble the original donor’s recipient as much as possible. In the context of class …
Cafa's Impact On Class Action Lawyers Symposium: Fairness To Whom - Perspectives On The Class Action Fairness Act Of 2005, Howard M. Erichson
Cafa's Impact On Class Action Lawyers Symposium: Fairness To Whom - Perspectives On The Class Action Fairness Act Of 2005, Howard M. Erichson
Faculty Scholarship
Procedural reforms alter litigation options directly, but they alter the litigation landscape in more ways than reformers anticipate. Three years ago, Congress dramatically expanded federal jurisdiction with the Class Action Fairness Act of 2005 (CAFA), a statute drafted with no love for class action plaintiffs' lawyers. Those lawyers have adapted to the statute, in part, by altering their forum-selection and claim-selection strategies. Analysis of these adaptations offers an emerging picture of the statute's impact on class actions and class action lawyers. CAFA's impact on the class action bar deserves particular attention because, although the statute speaks the language of subject …
How Like A Winter? The Plight Of Absent Class Members Denied Adequate Representation, Susan P. Koniak
How Like A Winter? The Plight Of Absent Class Members Denied Adequate Representation, Susan P. Koniak
Faculty Scholarship
Class actions assume absent class members. 2 Notices in class actions tell class members that they need not show up in the courthouse, although they may if they choose.3 Class members are told that class counsel and the named class representatives will look out for them, although if they choose to hire their own lawyer, she may appear on their behalf.4 They are also routinely told that once the decision in the class action becomes final they will be bound by it, losing any and all right to protest the resolution of their claims by the class action …
Comments On A Class Action Rule For Mississippi Comments, Howard M. Erichson
Comments On A Class Action Rule For Mississippi Comments, Howard M. Erichson
Faculty Scholarship
In my primary contribution to this Symposium, I address whether Mississippi ought to adopt a class action rule. In that article, I show that the lack of a class action rule prevents neither mass disputes nor mass aggregate litigation. I argue that for some mass disputes, class actions provide a superior mechanism for dispute resolution, and that Mississippi therefore should adopt a rule permitting class actions. There is another important question, however, which is what such a rule should contain if adopted. Indeed, the questions of whether to permit class actions and what a class action rule should contain are …
Typology Of Aggregate Settlements, A , Howard M. Erichson
Typology Of Aggregate Settlements, A , Howard M. Erichson
Faculty Scholarship
It is odd, considering how often lawyers engage in aggregate settlements, that no one seems able to explain what "aggregate settlement" means. It is one of the most important yet least defined terms in complex litigation. Lawyers and judges talk about aggregate settlements as though it were obvious what the term signifies and as though it describes a single thing. In fact, group settlements in multiparty litigation vary significantly. And they vary in ways that make it difficult to determine whether certain deals ought to be understood as collective settlements or simply as groups of individual settlements bundled together. This …
Mississippi Class Actions And The Inevitability Of Mass Aggregate Litigation, Howard M. Erichson
Mississippi Class Actions And The Inevitability Of Mass Aggregate Litigation, Howard M. Erichson
Faculty Scholarship
It's not about whether there will be mass aggregate litigation, but how. As long as the economy features mass marketing, mass employment, mass entertainment, mass transportation, mass production of goods, and mass provision of services, disputes will arise in which a mass of claimants seek relief from a common defendant or set of defendants. Lawyers on both sides naturally handle such matters collectively rather than individually. With or without the judicial imprimatur of class certification, multi- claimant disputes routinely are litigated and resolved on a collective basis. The real question is not whether there will be mass litigation, but whether …
Coattail Class Actions: Reflections On Microsoft, Tobacco, And The Mixing Of Public And Private Lawyering In Mass Litigation , Howard M. Erichson
Coattail Class Actions: Reflections On Microsoft, Tobacco, And The Mixing Of Public And Private Lawyering In Mass Litigation , Howard M. Erichson
Faculty Scholarship
Ask anyone who follows legal news to name the two biggest litigation news stories in the United States at the start of the twenty-first century, and they will answer without blinking: Microsoft and tobacco. The Microsoft litigation, they will tell you, claims a place in the pantheon of antitrust landmarks that includes Standard Oil, Alcoa, and AT&T. The tobacco litigation is the most massive in a string of mass torts including asbestos, Dalkon Shield, and breast implants; it is arguably the most important public health matter ever litigated. Microsoft and tobacco each fit so well and so interestingly in their …
Conflicts Consent And Allocation After Amchem Products – Or Why Attorneys Still Need Consent To Give Away Their Clients' Money, John C. Coffee Jr.
Conflicts Consent And Allocation After Amchem Products – Or Why Attorneys Still Need Consent To Give Away Their Clients' Money, John C. Coffee Jr.
Faculty Scholarship
If it was the goal of Silver and Baker to write a provocative article, they have succeeded. They ask probing questions; they are appropriately scornful of superficial answers; and they seek to relate their view of legal ethics to what they perceive to be the prevailing standards in the legal marketplace. All this is good. They also usefully focus on an underappreciated dichotomy: the ethical rules governing aggregated settlements in consensual litigation versus the rules applicable in aggregated nonconsensual litigation (i.e., class actions). Essentially, they argue that the rules in both contexts should be the same or very similar, the …
Corruption Of The Class Action: The New Technology Of Collusion, John C. Coffee Jr.
Corruption Of The Class Action: The New Technology Of Collusion, John C. Coffee Jr.
Faculty Scholarship
Professor Coffee's article, an oral version of which was given at the Cornell Mass Torts conference, is appearing in the Columbia Law Review. However, because commentators in this volume have responded to it, he has authorized the following summary of his views.
The Regulation Of Entrepreneurial Litigation: Balancing Fairness And Efficiency In The Large Class Action, John C. Coffee Jr.
The Regulation Of Entrepreneurial Litigation: Balancing Fairness And Efficiency In The Large Class Action, John C. Coffee Jr.
Faculty Scholarship
Just as war is too important to be left to generals, civil procedure – with apologies to Clemenceau – is too important to be left to proceduralists. Although it would be a serious overstatement to claim that all civil procedure scholars are confined by a tunnel vision focused only on the Federal Rules of Civil Procedure, they have as a group been reluctant to engage explicitly in incentive-based reasoning and seem particularly hesitant to reexamine what they must know to be a noble myth: namely, that the client can and should control all litigation decisions. Within an important and expanding …