Law Commons^™

Lawyering For Groups: The Case Of American Indian Tribal Attorneys, Kristen A. Carpenter, Eli Wald

Fordham Law Review

Lawyering for groups, broadly defined as the legal representation of a client who is not an individual, is a significant and booming phenomenon. Encompassing the representation of governments, corporations, institutions, peoples, classes, communities, and causes, lawyering for groups is what many, if not most, lawyers do. And yet, the dominant theory of law practice—the Standard Conception, with its principles of zealous advocacy, nonaccountability, and professional role-based morality—and the rules of professional conduct that codify it, continue to be premised on the basic antiquated assumption that the paradigmatic client-attorney relationship is between an individual client and an individual attorney. The result …

Foreward, Howard M. Erichson, Benjamin C. Zipursky

Fordham Law Review

No abstract provided.

Adequately Representing Groups, Elizabeth Chamblee Burch

Fordham Law Review

No abstract provided.

The Governance Problem In Aggregate Litigation, Samuel Issacharoff

Fordham Law Review

Recent developments in class action law and scholarship have forced new attention on the question of how class representation should be assessed. This Article begins with an examination of the governance problem in class action analyzed from the perspective of the customary political theories that would justify legitimate government in public and private domains. Customary accounts of democratic legitimacy or contractual voluntarism poorly capture the distinct world of the one-time aggregation of a class under court-assigned leadership. What emerges is an assessment of how various class action doctrines serve to fill the void in customary indications of legitimacy in governance. …

The Political Justification For Group Litigation, Alexandra D. Lahav

Fordham Law Review

No abstract provided.

“Helpless” Groups, Troy A. Mckenzie

Fordham Law Review

No abstract provided.

The Justiciability Of State Consumer Protection Claims In Federal Courts: A Study Of Named Plaintiffs Who Cease Using The Disputed Product Yet Seek Injunctive Relief, Meaghan Millan

Fordham Law Review

In recent years, there has been an increase in consumer protection class action litigation in federal courts. These suits arise from a group of consumers who have felt deceived by a particular product, ceased using that product, and then tried to sue a defendant manufacturer through state consumer protection statutes. Often, these individuals seek to enjoin the defendant’s use of an allegedly unfair business practice, such as “all natural” labeling. Since the plaintiff no longer uses the product, however, many district courts have refused to recognize that they may be at risk of a future injury and have held that …

The Fail-Safe Class As An Independent Bar To Class Certification, Erin L. Geller

Fordham Law Review

In 2012, the Fifth Circuit became the first circuit court to explicitly reject an argument that a fail–safe class—a class defined in terms of the defendant’s liability—was barred from class certification under Federal Rule of Civil Procedure 23. Drawing on previous cases in which it had rejected challenges that class definitions were circular, the Fifth Circuit in In re Rodriguez outright disclaimed a prohibition against fail–safe classes. This decision diverged from the Sixth and Seventh Circuits’ proscription against certifying fail–safe classes, creating a split among the circuits.

This Note explores this circuit split and argues that fail–safe classes must be …

A Substantive Right To Class Proceedings: The False Conflict Between The Faa And Nlra, Michael D. Schwartz

Fordham Law Review

In recent decades, the U.S. Supreme Court’s Federal Arbitration Act jurisprudence has greatly expanded the scope of enforceable arbitration agreements. In AT&T Mobility LLC v. Concepcion, decided in 2011, the Court held that a class arbitration waiver in a consumer contract was enforceable, despite state law to the contrary. In January 2012, the National Labor Relations Board ruled that, despite the Court’s holding in Concepcion, class waivers in employment arbitration agreements are unenforceable due to employees’ right under the National Labor Relations Act to engage in concerted activity. However, nearly all federal and state courts that have subsequently …

Let The Punishment Fit The Crime: Sanctioning Absent Class Members For Failure To Respond To Postcertification Discovery Requests, Elizabeth A. Kalenik

Fordham Law Review

Courts rarely allow defendants to take discovery of absent class members after class action certification. However, if a court does permit such discovery and some absentees fail to respond, should the court sanction the nonresponsive absentees? Under what circumstances should the court dismiss the nonresponsive absentees? When considering whether and what sanctions to impose, courts make a decision about the rights and role of absentees in class actions.

This Note examines postcertification absentee discovery sanctions through a discussion of group litigation. Next, it analyzes the reasoning of courts that have dismissed absentees, declined to dismiss absentees, and imposed other sanctions …