Law Commons^™

Calibrating Participation: Reflections On Procedure Versus Procedural Justice, Elizabeth Chamblee Burch

Elizabeth Chamblee Burch

Judging Multidistrict Litigation, Elizabeth Chamblee Burch

Elizabeth Chamblee Burch

Constructing Issue Classes, Elizabeth Chamblee Burch

Elizabeth Chamblee Burch

Remanding Multidistrict Litigation, Elizabeth Chamblee Burch

Elizabeth Chamblee Burch

Multidistrict litigation has frequently been described as a “black hole” because transfer is typically a one-way ticket. The numbers lend truth to this proposition. As of 2010, the Judicial Panel on Multidistrict Litigation remanded only 3.425% of cases to their original districts. That number dwindled to 3.1% in 2012, and to a scant 2.9% in 2013. Retaining cases in hopes of forcing a global settlement can cause a constellation of complications. These concerns range from procedural justice issues over selecting a forum and correcting error, to substantive concerns about fidelity to state laws, to undermining democratic participation ideals fulfilled through …

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

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

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

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

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

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 …

There's A Pennoyer In My Foyer: Civil Procedure According To Dr. Seuss, Elizabeth Chamblee Burch

Elizabeth Chamblee Burch

There’s A Pennoyer in My Foyer: Civil Procedure According to Dr. Seuss is what it purports to be: a Seussian take on civil procedure. It’s a short, fun essay that covers (1) the iron triangle of civil procedure—the role of lawyers, judges, and juries, and (2) prominent civil procedure doctrines, such as personal jurisdiction, Erie, pleading, discovery, and joinder.

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 …

Securities Class Actions As Pragmatic Ex Post Regulation, Elizabeth Chamblee Burch

Elizabeth Chamblee Burch

Securities class actions are on the chopping block—again. Traditional commentators continue to view class actions with suspicion; they see class suits as nonmeritorious byproducts of self-interest and the attorneys who bring them as rent-seekers. Their conventional approach has popularized securities class actions’ negative effects. High-profile commissions capitalizing on this rhetoric, such as the Committee on Capital Markets Regulation, have recently recommended eliminating or severely curtailing securities class actions. But this approach misses the point: in the ongoing push and pull of securities regulation, corporations are winning the battle. Thus, understanding the full picture and texture of securities class actions necessitates …

Cafa's Impact On Litigation As A Public Good, Elizabeth Chamblee Burch

Elizabeth Chamblee Burch

Class actions regulate when government fails. Perhaps this use as an ex post remedy when ex ante regulation founders explains the fervor and rhetoric surrounding Rule 23’s political life. In truth, the class action does more than aggregate; it augments government policing and generates external societal benefits. These societal benefits – “externalities” – are the spillover effects from facilitating small claims litigation. In federalizing class actions through the Class Action Fairness Act (CAFA), Congress, in some ways, impeded class action practice, thereby negating its positive externalities and inhibiting backdoor regulation. This Article critically considers those effects on the common good. …

Nonjurisdictionality Or Inequity, Elizabeth C. Burch

Elizabeth Chamblee Burch

This short piece, written for the Northwestern University Law Review Colloquy, responds to Professor Scott Dodson's comment on Bowles v. Russell, titled Jurisdictionality and Bowles v. Russell. Dodson proposes to navigate a path between Justice Thomas's majority opinion and Justice Souter's dissent by embracing Thomas's use of "mandatory" and Souter's argument for deeming appellate deadlines "nonjurisdictional." Considering the systemic, equitable policies underlying Rule 4(a)(6) and the prototypical examples distinguishing jurisdictional rules (those delineating classes of cases) from nonjurisdictional claim-processing rules, this nonjurisdictional alternative makes sense. It is the "mandatory" aspect of Professor Dodson's proposal that concerns me; it leaves no …

Unsettling Efficiency: When Non-Class Aggregation Of Mass Torts Creates Second-Class Settlements, Elizabeth Chamblee Burch

Elizabeth Chamblee Burch

Abstract: The potential for attorneys to collude in reaching a settlement agreement arises in any large-scale aggregation of mass torts. In the 1990s, attorneys settled seventy-four percent of the mass tort cases consolidated for transfer by the Judicial Panel on Multidistrict Litigation. Even though most mass tort litigation settles, the judicial system ensures the fairness and integrity of settlements only in the bankruptcy and class action contexts. Consequently, the fairness of the settlement can vary depending on how the judicial system aggregates the claims. Only thirty-nine percent of aggregated claims resulted in class action settlements. Two percent received bankruptcy protections. …

Between "Merit Inquiry" And "Rigorous Analysis": Using Daubert To Navigate The Gray Areas Of Federal Class Action Certification, Elizabeth C. Burch

Elizabeth Chamblee Burch

In recent years, the class action certification hearing has become the latest forum for disputes over the reliability of expert testimony. Since these hearings may involve complex technical matters, litigants frequently try to introduce expert testimony to either establish or challenge the basic requirements for class certification. Yet, most courts do not conduct a Daubert analysis before admitting expert testimony during certification, evaluate the evidence according to a uniform standard, or adequately weigh opposing expert opinions. Even though the Federal Rules of Evidence codify procedures to ensure the reliability of expert testimony, courts have been reluctant to employ them during …

Rhetoric Or Rights?: When Culture And Religion Bar Girls' Right To Education, Elizabeth Chamblee Burch

Elizabeth Chamblee Burch

Women account for almost two-thirds of the world's illiterates. In the year 2000, the World Education Forum met in Dakar, Senegal and set goals to (1) eliminate gender disparities in primary and secondary education by 2005, and (2) achieve gender equality in education by 2015. Two months before 2004, the United Nations Educational, Scientific, and Cultural Organization (UNESCO) reported that sixty percent of the 128 countries that attended the Dakar Conference would not meet these goals. The report attributed the failure to sharp discrimination against girls in social and cultural practices. The report failed to mention that social and cultural …