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Class Actions, Statutes Of Limitations And Repose, And Federal Common Law, Stephen B. Burbank, Tobias Barrington Wolff

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After more than three decades during which it gave the issue scant attention, the Supreme Court has again made the American Pipe doctrine an active part of its docket. American Pipe addresses the tolling of statutes of limitations in federal class action litigation. When plaintiffs file a putative class action in federal court and class certification is denied, absent members of the putative class may wish to pursue their claims in some kind of further proceeding. If the statute of limitations would otherwise have expired while the class certification issue was being resolved, these claimants may need the benefit of …

“Spooky Action At A Distance”: Intangible Injury In Fact In The Information Age, Seth F. Kreimer

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Two decades after Justice Douglas coined “injury in fact” as the token of admission to federal court under Article III, Justice Scalia sealed it into the constitutional canon in Lujan v. Defenders of Wildlife. In the two decades since Lujan, Justice Scalia has thrown increasingly pointed barbs at the permissive standing doctrine of the Warren Court, maintaining it is founded on impermissible recognition of “Psychic Injury.” Justice Scalia and his acolytes take the position that Article III requires a tough minded, common sense and practical approach. Injuries in fact must be "tangible" "direct" "concrete" "de facto" realities in time and …

Multiple Attempts At Class Certification, Tobias Barrington Wolff

All Faculty Scholarship

The phenomenon of multiple attempts at class certification -- when class counsel file the same putative class action in multiple successive courts and attempt to secure an order of certification despite previous denials of the same request -- has always presented a vexing analytical puzzle. When the Supreme Court rejected one proposed solution to that problem in Smith v. Bayer, it left unresolved some of the broader questions of preclusion doctrine, federal common law, and the constraints of due process with which any satisfying approach will have to grapple.

This essay was solicited as a reply to a recent …