Law Commons^™

Saving Charitable Settlements, Christine P. Bartholomew

Journal Articles

This Article defies the conventional wisdom that all charitable distributions from a class action settlement fund are types of cy pres. Instead, it proposes a radical delineation between “cy pres remainders” (meaning settlement funds left over after individual monetary distributions) and “charitable settlements” (meaning money initially distributed to charities as part of class action settlements). While both have cy pres roots, these two settlement structures have been conflated, jeopardizing the potential utility of charitable settlements. After articulating more precise nomenclature for these distinct distribution methods, this Article justifies why we must preserve charitable settlements. This defense is particularly timely, as …

Resurrecting Trial By Statistics, Jay Tidmarsh

Journal Articles

“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 …

Redefining Prey And Predator In Class Actions, Christine P. Bartholomew

Journal Articles

Aggregate litigation’s potential as a tool for the disempowered is not being realized. Class actions have come under serious attack in the last decade as critics have successfully worked to change traditional notions of victimhood. The leading narrative identifies big businesses as the vulnerable prey needing protection from large class claims and the greedy class actions attorneys who bring them. Relying on this narrative, courts and Congress have made class actions harder to pursue, from filing and class certification to settlement approval.

Vulnerability theory offers an alternative framework to rehabilitate class actions. From this perspective, the legal system currently disadvantages …