Law Commons^™

Politics, Identity, And Class Certification On The U.S. Courts Of Appeals, Stephen B. Burbank, Sean Farhang

Sean Farhang

This article draws on novel data and presents the results of the first empirical analysis of how potentially salient characteristics of Court of Appeals judges influence precedential lawmaking on class certification under Rule 23. We find that the partisan composition of the panel (measured by the party of the appointing president) has a very strong association with certification outcomes, with all-Democratic panels having more than double the certification rate of all-Republican panels in precedential cases. We also find that the presence of one African American on a panel, and the presence of two females (but not one), is associated with …

Resurrecting Trial By Statistics, Jay Tidmarsh

Jay Tidmarsh

“Trial by statistics” was a means by which a court could resolve a large number of aggregated claims: a court could try a random sample of claim, and extrapolate the average result to the remainder. In Wal-Mart, Inc. v. Dukes, the Supreme Court seemingly ended the practice at the federal level, thus removing from judges a tool that made mass aggregation more feasible. After examining the benefits and drawbacks of trial by statistics, this Article suggests an alternative that harnesses many of the positive features of the technique while avoiding its major difficulties. The technique is the “presumptive judgment”: a …

When Peace Is Not The Goal Of A Class Action Settlement, D. Theodore Rave

D. Theodore Rave

On the conventional account, a class action settlement is a vehicle through which the defendant buys peace from the class action lawyer. That single transaction will preclude future litigation by all class members. But peace, at least through preclusion, may not always be the goal. In a recent Fair Credit Reporting Action (FCRA) case, In re Trans Union Privacy Litigation, the parties agreed to a class action settlement that did not preclude individual claims. The 190 million class members surrendered only their rights to participate in a future class or aggregate action; they remained free to march right back into …

Resurrecting Trial By Statistics, Jay Tidmarsh

Jay Tidmarsh

“Trial by statistics” was one means by which a court could resolve a large number of aggregated claims: a court could try a random sample of claim, and extrapolate the average result to the remainder. In Wal-Mart, Inc. v. Dukes, the Supreme Court seemingly ended the practice at the federal level, thus removing from judges a tool that made mass aggregation more feasible.

After examining the benefits and drawbacks of trial by statistics, this Article suggests an alternative that harnesses many of the positive features of the technique while avoiding its major difficulties. The technique is the “presumptive judgment”: …

Idea Class Actions After Wal-Mart V. Dukes, Mark C. Weber

Mark C. Weber

Wal-Mart v. Dukes overturned the certification of a class of a million and a half female employees alleging sex discrimination in Wal-Mart’s salary and promotion decisions. The Supreme Court ruled that the case did not satisfy the requirement that a class have a common question of law or fact, and said that the remedy sought was not the type of relief available under the portion of the class action rule permitting mandatory class actions. Over the last two years, courts have struggled with how to apply the ruling, especially how to apply it beyond its immediate context of employment discrimination …

Morphing Case Boundaries In Multidistrict Litigation Settlements, Margaret Thomas

Margaret S. Thomas

The boundaries of federal multidistrict litigation (MDL) are blurring, as district courts seek innovative ways to facilitate global settlements to resolve multijurisdictional, multidimensional, national mass torts. The techniques emerging from the district courts have mostly evaded appellate review and received little scholarly attention, but they raise important challenges to traditional understandings of the nature of MDL and complex litigation. This Article argues that factually similar cases proceeding in multiple court systems in mass tort disputes create a “federalism problem” for global settlements: global settlements typically benefit from oversight by a single judge, but often there is no single judge who …

Adequately Representing Groups, Elizabeth Chamblee Burch

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 …

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 …