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Full-Text Articles in Law

Publicly Funded Objectors, Elizabeth Chamblee Burch Jan 2018

Publicly Funded Objectors, Elizabeth Chamblee Burch

Scholarly Works

On paper, class actions run like clockwork. But practice suggests the need for tune-ups: sometimes judges still approve settlements rife with red flags, and professional objectors may be more concerned with shaking down class counsel than with improving class members’ outcomes. The lack of data on the number of opt-outs, objectors, and claims rates fuels debates on both sides, for little is known about how well or poorly class members actually fare. This reveals a ubiquitous problem — information barriers confront judges, objectors, and even reformers. Rule 23’s answer is to empower objectors. At best, objectors are a partial fix ...


American Pipe Tolling, Statutes Of Repose, And Protective Filings: An Empirical Study, David Freeman Engstrom, Jonah B. Gelbach Mar 2017

American Pipe Tolling, Statutes Of Repose, And Protective Filings: An Empirical Study, David Freeman Engstrom, Jonah B. Gelbach

Faculty Scholarship at Penn Law

This paper offers a conceptual and empirical analysis of a key issue that overhangs CalPERS v. ANZ Securities, soon to be decided by the Supreme Court. In particular, the paper offers an empirical estimate of the plausible quantity of wasteful protective filings that putative class members might make if the Court were to hold that American Pipe tolling does not apply to statutes of repose in the federal securities laws.


Class Actions And The Counterrevolution Against Federal Litigation, Stephen B. Burbank, Sean Farhang Jan 2017

Class Actions And The Counterrevolution Against Federal Litigation, Stephen B. Burbank, Sean Farhang

Faculty Scholarship at Penn Law

In this article we situate consideration of class actions in a framework, and fortify it with data, that we have developed as part of a larger project, the goal of which is to assess the counterrevolution against private enforcement of federal law from an institutional perspective. In a series of articles emerging from the project, we have documented how the Executive, Congress and the Supreme Court (wielding both judicial power under Article III of the Constitution and delegated legislative power under the Rules Enabling Act) fared in efforts to reverse or dull the effects of statutory and other incentives for ...


The Impact Of Wal-Mart V. Dukes On Employment Discrimination Class Actions Five Years Out: A Forecast That Suggests More Of A Wave Than A Tsunami, Suzette M. Malveaux Jan 2017

The Impact Of Wal-Mart V. Dukes On Employment Discrimination Class Actions Five Years Out: A Forecast That Suggests More Of A Wave Than A Tsunami, Suzette M. Malveaux

Articles

No abstract provided.


Repeat Players In Multidistrict Litigation: The Social Network, Elizabeth Chamblee Burch, Margaret S. Williams Jan 2017

Repeat Players In Multidistrict Litigation: The Social Network, Elizabeth Chamblee Burch, Margaret S. Williams

Scholarly Works

As class certification wanes, plaintiffs’ lawyers resolve hundreds of thousands of individual lawsuits through aggregate settlements in multidistrict litigation. But without class actions, formal rules are scarce and judges rarely scrutinize the private agreements that result. Meanwhile, the same principal-agent concerns that plagued class-action attorneys linger. These circumstances are ripe for exploitation: few rules, little oversight, multi-million dollar common-benefit fees, and a push for settlement can tempt a cadre of repeat players to fill in the gaps in ways that further their own self-interest.

Although multidistrict litigation now comprises 36 percent of the entire federal civil caseload, legal scholars have ...


Class Action Myopia, Maureen Carroll Feb 2016

Class Action Myopia, Maureen Carroll

Articles

Over the past two decades, courts and commentators have often treated the class action as though it were a monolith, limiting their analysis to the particular class form that joins together a large number of claims for monetary relief This Article argues that the myopic focus on the aggregated-damages class action has led to undertheorization of the other class-action subtypes, which serve far different purposes and have far different effects, and has allowed the ongoing backlash against the aggregated-damages class action to affect the other subtypes in an undifferentiated manner. The failure to confine this backlash to its intended target ...


The Problem Of Settlement Class Actions, Howard M. Erichson Jan 2014

The Problem Of Settlement Class Actions, Howard M. Erichson

Faculty Scholarship

This article argues that class actions should never be certified solely for purposes of settlement. Contrary to the widespread “settlement class action” practice that has emerged in recent decades, contrary to current case law permitting settlement class certification, and contrary to recent proposals that would extend and facilitate settlement class actions, this article contends that settlement class actions are ill-advised as a matter of litigation policy and illegitimate as a matter of judicial authority. This is not to say that disputes should not be resolved on a classwide basis, or that class actions should not be resolved by negotiated resolutions ...


A Diamond In The Rough: Trans-Substantivity Of The Federal Rules Of Civil Procedure And Its Detrimental Impact On Civil Rights, Suzette Malveaux Jan 2014

A Diamond In The Rough: Trans-Substantivity Of The Federal Rules Of Civil Procedure And Its Detrimental Impact On Civil Rights, Suzette Malveaux

Articles

No abstract provided.


Managerial Judging And Substantive Law, Tobias Barrington Wolff Jan 2013

Managerial Judging And Substantive Law, Tobias Barrington Wolff

Faculty Scholarship at Penn Law

The figure of the proactive jurist, involved in case management from the outset of the litigation and attentive throughout the proceedings to the impact of her decisions on settlement dynamics -- a managerial judge -- has displaced the passive umpire as the dominant paradigm in the federal district courts. Thus far, discussions of managerial judging have focused primarily upon values endogenous to the practice of judging. Procedural scholarship has paid little attention to the impact of the underlying substantive law on the parameters and conduct of complex proceedings.

In this Article, I examine the interface between substantive law and managerial judging. The ...


The Power And Promise Of Procedure: Examining The Class Action Landscape After Wal-Mart V. Dukes, Suzette M. Malveaux Jan 2013

The Power And Promise Of Procedure: Examining The Class Action Landscape After Wal-Mart V. Dukes, Suzette M. Malveaux

Articles

No abstract provided.


Secret Class Action Settlements, Rhonda Wasserman Jan 2012

Secret Class Action Settlements, Rhonda Wasserman

Articles

This Article analyzes the phenomenon of secret class action settlements. To illustrate the practice, Part I undertakes a case study of a class action lawsuit that recently settled under seal. Part II seeks to ascertain the scope of the practice. Part II.A examines newspaper accounts describing class action settlements from around the country. Part II.B focuses on a single federal judicial district – the Western District of Pennsylvania – and seeks to ascertain the percentage of suits filed as class actions that were settled under seal. Having gained some understanding of the scope of the practice, the Article then seeks ...


Optimal Lead Plaintiffs, Elizabeth Chamblee Burch May 2011

Optimal Lead Plaintiffs, Elizabeth Chamblee Burch

Scholarly Works

Adequate representation in securities class actions is, at best, an afterthought and, at worst, usurped and subsumed by the Private Securities Litigation Reform Act’s lead-plaintiff appointment process. Once appointed, the lead plaintiff bears a crushing burden: Congress expects her to monitor the attorney, thwart strike suits, and deter fraud, while judges expect her appointment as the “most adequate plaintiff” to resolve intra-class conflicts and adequate-representation problems. But even if she could be all things to all people, the lead plaintiff has little authority to do much aside from appointing lead counsel. Plus, class members in securities-fraud cases have diverse ...


How Goliath Won: The Future Implications Of Dukes V. Wal-Mart, Suzette M. Malveaux Jan 2011

How Goliath Won: The Future Implications Of Dukes V. Wal-Mart, Suzette M. Malveaux

Articles

No abstract provided.


Cafa's Impact On Litigation As A Public Good, Elizabeth Chamblee Burch May 2008

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

Scholarly Works

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. It ...


Class Actions And Limited Vision: Opportunities For Improvement Through A More Functional Approach To Class Treatment Of Disputes, Jeffrey W. Stempel Jan 2005

Class Actions And Limited Vision: Opportunities For Improvement Through A More Functional Approach To Class Treatment Of Disputes, Jeffrey W. Stempel

Scholarly Works

This Article describes the evolution of the perception of the modern class action from populist darling to greedy lawyer pariah, including recent passage of CAFA. It then examines the degree to which different types of cases present different potential benefits and detriments of class action treatment and explains why investor class actions, including those brought by institutional investors, are particularly likely to benefit from class treatment, are resistant to many of the perceived problems of class actions in other contexts, and should receive a warmer welcome from courts, both in absolute terms and relative to other types of class actions ...


Federal Class Action Reform In The United States: Past And Future And Where Next?, Edward H. Cooper Jan 2002

Federal Class Action Reform In The United States: Past And Future And Where Next?, Edward H. Cooper

Articles

Predicting the likely future developments in class action practice in the federal courts of the United States must begin in the past.


Aggregation And Settlement Of Mass Torts, Edward H. Cooper Jan 2000

Aggregation And Settlement Of Mass Torts, Edward H. Cooper

Articles

The following essay is the pre-editing draft of the introduction to a paper delivered at a Mass Torts conference held at the University of Pennsylvania Law School in November 1999. Thc conference grew out of the work of the ad hoc Mass Torts Working Group that on February 15, 1999, delivered a Report to the Chief Justice of the United States and the judicial Conference of the United States. The Working Group, chaired by Third Circuit Judge Anthony J. Scirica, '65, included members drawn from several Judicial Conference committees, including the Advisory Committee on the Federal Rules of Civil Procedure ...


Aggregation And Settlement Of Mass Torts, Edward H. Cooper Jan 2000

Aggregation And Settlement Of Mass Torts, Edward H. Cooper

Articles

It is the way of symposia that, after conveners assign topics for discussion, participants interpret those topics to cover subjects that interest themselves. I understand my assignment to be discussion of "nonbankruptcy closure" and "settlement." The Judicial Conference Working Group on Mass Torts suggests possible approaches that might facilitate closure of mass tort claims by litigation or by settlement! This paper will explore two models prepared to illustrate the challenges that confront any approach to fair and efficient closure. The first model is the "All-Encompassing Model," while the second is a draft of settlement-class provisions for Federal Rule of Civil ...


Class Action Rule Changes: A Midpoint Report, Edward H. Cooper Jan 1996

Class Action Rule Changes: A Midpoint Report, Edward H. Cooper

Articles

This a midpoint progress report of the Reporter on current proposals to amend the class action rule, Rule 23 of the Federal Rules of Civil Procedure. In part, it is one of many calls for help. The proposed amendments have been published for comment. It is important that the rulemakers hear from as many interested observers as possible. One of the pitfalls of the comment process - at least one of the pitfalls that the rulemakers like to believe in - is that there are many observers who believe that the rulemakers have got it right, and do not need to be ...


Conflict And Dissent In Class Actions: A Suggested Perspective, Bryant G. Garth Jan 1982

Conflict And Dissent In Class Actions: A Suggested Perspective, Bryant G. Garth

Articles by Maurer Faculty

No abstract provided.