Law Commons^™

Foreign Citizens As Members Of Transnational Class Actions, Jay Tidmarsh

Jay Tidmarsh

This Article addresses an increasingly important question: When, if ever, should foreign citizens be included as members of an American class action? The existing consensus holds that foreign citizens whose home forum will not recognize an American class judgment should be excluded from membership. Our analysis begins by establishing that this consensus is seriously flawed and misapprehends the nature of the problem. Using standard tools of economic analysis, we then make two arguments. First, the decision to include or exclude foreign class members should be based upon a comparison of costs and benefits: in particular, the costs generated by foreign …

Making Wto Remedies Work For Developing Nations: The Need For Class Actions, Phoenix X. Cai

Phoenix X. Cai

Making WTO Remedies Work for Developing Nations: The Need for Class Actions

Abstract

Developing nations comprise more than four-fifths of the membership of the World Trade Organization (“WTO”). Yet, they seldom participate in the WTO’s powerful dispute settlement process. This is problematic because the WTO is essentially a self-enforcing system of reciprocal trade rights that relies on proactive monitoring and enforcement by all members. Use of the self-enforcement mechanism – by initiating cases under the WTO’s Dispute Settlement Understanding (“DSU”) - is critical.

There are five primary reasons why developing nations do not actively invoke the DSU. This Article argues …

Of Vulnerable Monopolists?: Questionable Innovation In The Standard For Class Certification In Antitrust Cases, Joshua P. Davis, Eric L. Cramer

Joshua P. Davis

Some courts appear to have begun to revise the standard for granting class certification, including in antitrust cases. The new standard, if there is one, may empower courts to find facts relevant to the merits in a way that historically they have not been permitted to do. If courts are ratcheting up the standard at class certification by forcing plaintiffs to make a showing on the merits, then it seems an unfortunate development for various reasons. First, the rationale for the change is unsubstantiated and implausible. Neither theory nor evidence supports the claim that corporations settle meritless class actions with …

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” …