Law Commons^™

Adequacy Of Representation In Argentina: Federal Supreme Court’S Case Law, Bills Pending Before Congress And The Preliminary Draft Of A New Civil Code, Francisco Verbic

Francisco Verbic

The paper describes how adequacy of representation has recently arrived to Argentina’s legal system in the field of representative litigation. First of all, in the FederalSupreme Court’s case law. Then, in some bills which are nowadays pending before Congress. Lastly, in the Preliminary Draft of a new Civil Code recently announced by the President and the Chief Justice of the Federal Supreme Court. I take a critical approach towards the issue, particularly because of the little attention paid to such a relevant aspect of representative proceedings

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 …

Investor Protection Meets The Federal Arbitration Act, Barbara Black, Jill Gross

Barbara Black

In the past three decades, most recently in AT&T Mobility LLC v. Concepcion, the United States Supreme Court has advanced an aggressive pro-arbitration campaign, transforming the Federal Arbitration Act (FAA) into a powerful source of anti-consumer substantive arbitration law. In the aftermath of AT&T Mobility, which upheld a prohibition on class actions in a consumer contract despite state law that refused to enforce such provisions on unconscionability grounds, efforts have been made to prohibit investors from bringing class actions or joining claims, including claims under the Securities Exchange Act of 1934 (the Exchange Act). In the most egregious example to …

Cultural Dimensions Of Group Litigation: The Belgian Case, Stefaan Voet

stefaan voet

People assume that only the US has class actions, and that assumption is increasingly wrong. The existence of mass harms with large numbers of claimants have created challenges for access to justice, judicial efficiency, and the enforcement of legal norms that make traditional individual litigation unworkable. Therefore, many European countries are struggling to craft procedural mechanisms to allow the resolution of group claims in a way that incorporates the helpful parts of US class actions while avoiding its inefficiencies and potential abuses. This paper will discuss the current debate in Belgium. It begins, in section I, by putting that debate …

Class Actions, Heightened Commonality, And Declining Access To Justice, A. Benjamin Spencer

A. Benjamin Spencer

A prerequisite to being certified as a class under Rule 23 of the Federal Rules of Civil Procedure is that there are “questions of law or fact common to the class.” Although this “commonality” requirement had heretofore been regarded as something that was easily satisfied, in Wal-Mart Stores, Inc. v. Dukes the Supreme Court gave it new vitality by reading into it an obligation to identify among the class a common injury and common questions that are “central” to the dispute. Not only is such a reading of Rule 23’s commonality requirement unsupported by the text of the rule, but …

Consumer Class Actions In Argentina And Brazil. Comparative Analysis And Enforcement Of Foreign Judgments, Francisco Verbic

Francisco Verbic

No abstract provided.

Justice For Profit: A Comparative Analysis Of Australian, Canadian And U.S. Third Party Litigation Funding, Jasminka Kalajdzic, Peter Cashman, Alana M. Longmoore

Jasminka Kalajdzic

Third party litigation funding (TPLF) has emerged as one of the most important developments in civil litigation. Courts and policymakers in several countries are looking to each other as they debate the costs and benefits of this growing industry, and the need for regulatory oversight. Such cross-pollination in the public and jurisprudential debates on TPLF can be enormously helpful, but must be approached with caution. The TPLF industry operates in very different procedural environments, and any comparative analysis must take into account the various jurisdictions’ unique litigation culture and architecture. In this paper, the authors explore TPLF in the U.S., …

Rule 23(B) After Wal-Mart: (Re) Considering A Unitary Standard, Mollie A. Murphy

Mollie A Murphy

Abstract

For more than forty years, the requirements for class certification have been specified in Rule 23 (a) and (b). Under these provisions, a class may be certified if all the requirements of subsection (a) are satisfied, and if the class fits within one of the categories set forth in subsection (b). The court's selection of category, in turn, determines what protections beyond adequate representation must be provided absentee class members. By articulating classifications that emphasized function over formalism, the drafters of the 1966 amendments sought to bring needed clarity and certainty to the certification process.

The hoped-for certainty, however, …

Why Is The Highway Closed? The Unreasonable Restriction Imposed On The Legal Services Corporation Regarding Class Action Suits, Francisco Verbic

Francisco Verbic

In this paper I discuss the prohibition imposed by the US Congress on the Legal Services Corporation regarding the use of class action suits to provide free legal assistance to the poor. I deal with the creation of the Legal Services Corporation in the US, the scope and advantages of class actionssuits (particularly in terms of access to justice), and the role this kind of procedure can play in a context of a deep economic crisis that have deepened the gap in access to the civil justice system. I argue that the aforementioned prohibition to use class actions is unreasonable …

Class Actions, Heightened Commonality, And Declining Access To Justice, A. Benjamin Spencer

A. Benjamin Spencer

A prerequisite to being certified as a class under Rule 23 of the Federal Rules of Civil Procedure is that there are “questions of law or fact common to the class.” Although this “commonality” requirement had heretofore been regarded as something that was easily satisfied, in Wal-Mart Stores, Inc. v. Dukes the Supreme Court gave it new vitality by reading into it an obligation to identify among the class a common injury and common questions that are “central” to the dispute. Not only is such a reading of Rule 23’s commonality requirement unsupported by the text of the rule, but …

A Question Of Taste: Touchtones For Determining The Certifiability Of Class-Wide Claims For Declaratory And Injunctive Relief Under Rule 23 Of The Federal Rules Of Civil Procedure, Randy D. Gordon

Randy D. Gordon