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Full-Text Articles in Law

Politics, Identity, And Class Certification On The U.S. Courts Of Appeals, Stephen B. Burbank, Sean Farhang Aug 2019

Politics, Identity, And Class Certification On The U.S. Courts Of Appeals, Stephen B. Burbank, Sean Farhang

Sean Farhang

This article draws on novel data and presents the results of the first empirical analysis of how potentially salient characteristics of Court of Appeals judges influence precedential lawmaking on class certification under Rule 23. We find that the partisan composition of the panel (measured by the party of the appointing president) has a very strong association with certification outcomes, with all-Democratic panels having more than double the certification rate of all-Republican panels in precedential cases. We also find that the presence of one African American on a panel, and the presence of two females (but not one), is associated with ...


Politics, Identity, And Class Certification On The U.S. Courts Of Appeals, Stephen B. Burbank, Sean Farhang Aug 2019

Politics, Identity, And Class Certification On The U.S. Courts Of Appeals, Stephen B. Burbank, Sean Farhang

Faculty Scholarship at Penn Law

This article draws on novel data and presents the results of the first empirical analysis of how potentially salient characteristics of Court of Appeals judges influence precedential lawmaking on class certification under Rule 23. We find that the partisan composition of the panel (measured by the party of the appointing president) has a very strong association with certification outcomes, with all-Democratic panels having more than double the certification rate of all-Republican panels in precedential cases. We also find that the presence of one African American on a panel, and the presence of two females (but not one), is associated with ...


Mootness Fees, Matthew D. Cain, Jill E. Fisch, Steven Davidoff Solomon, Randall Thomas May 2019

Mootness Fees, Matthew D. Cain, Jill E. Fisch, Steven Davidoff Solomon, Randall Thomas

Faculty Scholarship at Penn Law

We examine the latest development in merger litigation: the mootness fee. Utilizing a hand-collected sample of 2,320 unique deals from 2003-2018, we find that Delaware’s crackdown on merger litigation substantially altered the merger litigation landscape. Although merger litigation rates remain high, and in 2018 83% of deals experienced litigation, plaintiffs’ lawyers have fled Delaware. In 2018 only 5% of completed deals experienced merger litigation in Delaware compared to 50%-60% in prior years. These cases have migrated to federal court where in 2018 92% of deals with litigation experienced a filing. We find that at least 65% of ...


Class Actions, Indivisibility, And Rule 23(B)(2), Maureen Carroll Jan 2019

Class Actions, Indivisibility, And Rule 23(B)(2), Maureen Carroll

Articles

The federal class-action rule contains a provision, Rule 23(b)(2), that authorizes class-wide injunctive or declaratory relief for class-wide wrongs. The procedural needs of civil rights litigation motivated the adoption of the provision in 1966, and in the intervening years, it has played an important role in managing efforts to bring about systemic change. At the same time, courts have sometimes struggled to articulate what plaintiffs must show in order to invoke Rule 23(b)(2). A few years ago, the Supreme Court weighed in, stating that the key to this type of class action is the “indivisible” nature ...


Class Actions, Statutes Of Limitations And Repose, And Federal Common Law, Stephen B. Burbank, Tobias Barrington Wolff Dec 2018

Class Actions, Statutes Of Limitations And Repose, And Federal Common Law, Stephen B. Burbank, Tobias Barrington Wolff

Faculty Scholarship at Penn Law

After more than three decades during which it gave the issue scant attention, the Supreme Court has again made the American Pipe doctrine an active part of its docket. American Pipe addresses the tolling of statutes of limitations in federal class action litigation. When plaintiffs file a putative class action in federal court and class certification is denied, absent members of the putative class may wish to pursue their claims in some kind of further proceeding. If the statute of limitations would otherwise have expired while the class certification issue was being resolved, these claimants may need the benefit of ...


Application Of The New "Proportionality" Discovery Rule In Class Actions: Much Ado About Nothing, Robert H. Klonoff Nov 2018

Application Of The New "Proportionality" Discovery Rule In Class Actions: Much Ado About Nothing, Robert H. Klonoff

Vanderbilt Law Review

The "proportionality" amendment to the federal discovery rules, which went into effect on December 1, 2015, was greeted with panic by the plaintiffs' bar (and the academy) and euphoria by the defense bar. Both sides predicted that the impact would be profound and immediate. Some predicted that the impact would be especially great in class actions. To examine whether the predictions have been correct, I have reviewed every published judicial opinion (approximately 135) between December 1, 2015 and April 30, 2018 that applied the new proportionality rule in the class action context. The analysis is necessarily anecdotal rather than empirical ...


Securities Law In The Sixties: The Supreme Court, The Second Circuit, And The Triumph Of Purpose Over Text, Adam C. Pritchard, Robert B. Thompson Nov 2018

Securities Law In The Sixties: The Supreme Court, The Second Circuit, And The Triumph Of Purpose Over Text, Adam C. Pritchard, Robert B. Thompson

Articles

This Article analyzes the Supreme Court’s leading securities cases from 1962 to 1972—SEC v. Capital Gains Research Bureau, Inc.; J.I. Case Co. v. Borak; Mills v. Electric Auto-Lite Co.; Superintendent of Insurance v. Bankers Life & Casualty Co.; and Affiliated Ute of Utah v. United States—relying not just on the published opinions, but also the Justices’ internal letters, memos, and conference notes. The Sixties Court did not simply apply the text as enacted by Congress, but instead invoked the securities laws’ purposes as a guide to interpretation. The Court became a partner of Congress in shaping the securities laws ...


Rights And Retrenchment In The Trump Era, Stephen B. Burbank, Sean Farhang Oct 2018

Rights And Retrenchment In The Trump Era, Stephen B. Burbank, Sean Farhang

Faculty Scholarship at Penn Law

Our aim in this essay is to leverage archival research, data and theoretical perspectives presented in our book, Rights and Retrenchment: The Counterrevolution against Federal Litigation, as a means to illuminate the prospects for retrenchment in the current political landscape. We follow the scheme of the book by separately considering the prospects for federal litigation retrenchment in three lawmaking sites: Congress, federal court rulemaking under the Rules Enabling Act, and the Supreme Court. Although pertinent data on current retrenchment initiatives are limited, our historical data and comparative institutional perspectives should afford a basis for informed prediction. Of course, little in ...


Rethinking Civil Rico: The Vexing Problem Of Causation In Fraud-Based Claims Under 18 U.S.C. § 1962(C), Randy D. Gordon Jun 2018

Rethinking Civil Rico: The Vexing Problem Of Causation In Fraud-Based Claims Under 18 U.S.C. § 1962(C), Randy D. Gordon

Randy D. Gordon

To recover in a private action, the three-part structure of RICO demands proof of particularized crimes at two levels and civil standing to sue for those crimes. The interpretation and application of the standing requirement — which arises from the statute’s mandate that compensable injuries be caused “by reason of” acts of racketeering — have bedeviled courts and litigants for decades. Recent developments in class action law have exacerbated the problem. As more and more courts have rendered it nearly impossible to certify classes asserting state-law claims, class plaintiffs have turned to uniform federal laws like RICO. But civil RICO claims ...


Enforcing The Bargain V. Materiality Requirement: The Future Of Disclosure-Only Settlements Post-Trulia, Hao Jiang May 2018

Enforcing The Bargain V. Materiality Requirement: The Future Of Disclosure-Only Settlements Post-Trulia, Hao Jiang

Pace Law Review

In In re Trulia, Inc. Stockholder Litigation, the Delaware Court of Chancery broke away from its tradition of routinely approving disclosure-only settlements and required disclosures to be material in order to cure the conflict of interest between plaintiff’s counsel and the plaintiff class. I argue that fairness of settlement is the only standard in approving class action settlements and fairness will not be achieved by requiring materiality. Shareholders are legally entitled to all material information, as the board’s fiduciary duty dictates. Thus, material disclosures are enforcement of a legal duty that is no consideration for the release of ...


Vindicating Statutory Employment Rights In The Age Of Mandatory Arbitration: State Attorney General Parens Patriae Litigation As An Alternative To Class Actions, Aaron Bibb Apr 2018

Vindicating Statutory Employment Rights In The Age Of Mandatory Arbitration: State Attorney General Parens Patriae Litigation As An Alternative To Class Actions, Aaron Bibb

Louis Jackson National Student Writing Competition

No abstract provided.


Procedural Retrenchment And The States, Zachary D. Clopton Apr 2018

Procedural Retrenchment And The States, Zachary D. Clopton

Cornell Law Faculty Publications

Although not always headline grabbing, the Roberts Court has been highly interested in civil procedure. According to critics, the Court has undercut access to justice and private enforcement through its decisions on pleading, class actions, summary judgment, arbitration, standing, personal jurisdiction, and international law.

While I have much sympathy for the Court's critics, the current discourse too often ignores the states. Rather than bemoaning the Roberts Court's decisions to limit court access-and despairing further developments in the age of Trump-we instead might productively focus on the options open to state courts and public enforcement. Many of the aforementioned ...


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 ...


Piling On? An Empirical Study Of Parallel Derivative Suits, Stephen J. Choi, Jessica Erickson, Adam C. Pritchard Nov 2017

Piling On? An Empirical Study Of Parallel Derivative Suits, Stephen J. Choi, Jessica Erickson, Adam C. Pritchard

Articles

Using a sample of all companies named as defendants in securities class actions between July 1, 2005 and December 31, 2008, we study parallel suits relying on state corporate law arising out of the same allegations as the securities class actions. We test several ways that parallel suits may add value to a securities class action. Most parallel suits target cases involving obvious indicia of wrongdoing. Moreover, we find that although a modest percentage of parallel suits are filed first, over 80 percent are filed after a securities class action (termed “follow-on” parallel suits). We find that parallel suits and ...


Judge Kozinski Objects, Beth H. Wilensky Sep 2017

Judge Kozinski Objects, Beth H. Wilensky

Articles

Sitting judges don’t get to practice law. So although they often opine on the dos and don’ts of effective advocacy, we rarely get to see them put their advice into practice. But a few years ago, a class-action lawsuit provided the rare opportunity to witness a federal judge acting as an advocate before another federal judge—if not in the role of attorney, then certainly in as close to that role as we are likely to see. Given the chance to employ his own advice about effective advocacy, would the judge—Alex Kozinski—practice what he preaches? Would ...


Sexual Violence As An Occupational Hazard & Condition Of Confinement In The Closed Institutional Systems Of The Military And Detention, Hannah Brenner, Kathleen Darcy, Sheryl Kubiak Aug 2017

Sexual Violence As An Occupational Hazard & Condition Of Confinement In The Closed Institutional Systems Of The Military And Detention, Hannah Brenner, Kathleen Darcy, Sheryl Kubiak

Pepperdine Law Review

Women in the military are more likely to be raped by other service members than to be killed in combat. Female prisoners internalize rape by corrections officers as an inherent part of their sentence. Immigrants held in detention fearing deportation or other legal action endure rape to avoid compromising their cases. This Article draws parallels among closed institutional systems of prisons, immigration detention, and the military. The closed nature of these systems creates an environment where sexual victimization occurs in isolation, often without knowledge of or intervention by those on the outside, and the internal processes for addressing this victimization ...


Labor And The Origins Of Civil Procedure, Luke P. Norris Jan 2017

Labor And The Origins Of Civil Procedure, Luke P. Norris

Law Faculty Publications

A series of changes within civil procedure over the past few decades—including the rise of private arbitration, the accompanying decline of public adjudication, and the erection of barriers to class actions—have diminished the economic power of workers, consumers, and diffuse economic actors. This Article demonstrates that avoiding these economic consequences was a central goal of those who crafted American federal civil procedure in the first place. Driven to action by the procedural issues involved in labor injunction cases, leading procedural reformers behind the modern regime strove to make American federal civil procedure sensitive to questions of political economy ...


The Reasonable Investor Of Federal Securities Law, Amanda Rose Jan 2017

The Reasonable Investor Of Federal Securities Law, Amanda Rose

Vanderbilt Law School Faculty Publications

Federal securities law defines the materiality of corporate disclosures by reference to the views of a hypothetical reasonable investor. For decades the reasonable investor standard has been a flashpoint for debate with critics complaining of the uncertainty it generates and defenders warning of the under-inclusiveness of bright-line alternatives. This Article attempts to shed fresh light on the issue by considering how the reasonable investor differs from its common law antecedent, the reasonable person of tort law. The differences identified suggest that the reasonable investor standard is more costly than tort laws reasonable person standard - the uncertainty it generates is both ...


Justice Scalia And Class Actions, Brian T. Fitzpatrick Jan 2017

Justice Scalia And Class Actions, Brian T. Fitzpatrick

Vanderbilt Law School Faculty Publications

I have been asked to write an essay on Justice Scalia's class action jurisprudence and although I suspect many readers will find this surprising because the Justice is so often linked to constitutional law, I actually think that his class action jurisprudence may be where his opinions leave some of the biggest marks. To be as blunt about it as the Justice himself would have been: for better or for worse, I am not sure any other Justice of the Supreme Court in American history has done more to hinder the class action lawsuit than Justice Scalia did.

The ...


Response, Class Actions, Civil Rights, And The National Injunction, Suzette M. Malveaux Jan 2017

Response, Class Actions, Civil Rights, And The National Injunction, Suzette M. Malveaux

Articles

This essay is a response to Professor Samuel Bray’s article proposing a blanket prohibition against injunctions that enjoin a defendant’s conduct with respect to nonparties. He argues that national injunctions are illegitimate under Article III and traditional equity and result in a number of difficulties.

This Response argues, from a normative lens, that Bray’s proposed ban on national injunctions should be rejected. Such a bright-line rule against national injunctions is too blunt an instrument to address the complexity of our tripartite system of government, our pluralistic society and our democracy. Although national injunctions may be imperfect and ...


A Negative Retrospective Of Rule 23, Scott Dodson Dec 2016

A Negative Retrospective Of Rule 23, Scott Dodson

Scott Dodson

This symposium contribution offers a negative retrospective of Rule 23 through six decades of rulemaking. Rather than focus on what was, I consider what was not: major amendment proposals that failed to become law. This negative retrospective projects a dramatically different vision of Rule 23, and it offers insights into both the Rule 23 of today and the rulemaking process more generally.


Class Roots: The Genesis Of The Ontario Class Proceedings Act, 1966 - 1993, Suzanne Erica Chiodo Nov 2016

Class Roots: The Genesis Of The Ontario Class Proceedings Act, 1966 - 1993, Suzanne Erica Chiodo

LLM Theses

Nearly 25 years since its passage, the Ontario Class Proceedings Act has become one of the most frequently debated procedural mechanisms of its kind. The CPA came about following the release of the Attorney Generals Advisory Committee (AGAC) Report in 1990. None of the current narratives explain how this Report pulled together so many divergent interests where previous attempts had failed. My thesis answers this question with reference to the historical sources and the legal, political and social changes that took place throughout this period.

This thesis also highlights the unique nature of the AGAC consultation process, which saw the ...


Do The Second Circuit’S Legal Standards On Class Certification Incentivize Forum Shopping?: A Comparative Analysis Of The Second Circuit’S Class Certification Jurisprudence, Shrey Sharma Nov 2016

Do The Second Circuit’S Legal Standards On Class Certification Incentivize Forum Shopping?: A Comparative Analysis Of The Second Circuit’S Class Certification Jurisprudence, Shrey Sharma

Fordham Law Review

The Class Action Fairness Act altered the jurisdictional landscape of class actions by relaxing the barriers to satisfying diversity jurisdiction in federal court. As a result, plaintiffs’ attorneys frequently find themselves filing class actions in federal court, and face the critical question of where to initiate their lawsuit. Many plaintiffs’ attorneys consider the favorability of legal standards when determining the forum in which to file their class action. Among other substantive and procedural considerations, the applicable class certification standards of the forum are an important forum selection factor. The Second Circuit, in particular, is a forum that plaintiffs’ attorneys might ...


Superiority As Unity, Jay Tidmarsh Oct 2016

Superiority As Unity, Jay Tidmarsh

Jay Tidmarsh

One of Professor Redish’s many important contributions to legal scholarship is his recent work on class actions. Grounding his argument in the theory of democratic accountability that has been at the centerpiece of all his work, Professor Redish suggests that, in nearly all instances, class actions violate the individual autonomy of litigants and should not be used by courts. This Essay, prepared for a festschrift in honor of Professor Redish, begins from the opposite premise: that class actions should be grounded in the notion of social utility rather than autonomy so that class actions should be used whenever they ...


Cy Pres And The Optimal Class Action, Jay Tidmarsh Oct 2016

Cy Pres And The Optimal Class Action, Jay Tidmarsh

Jay Tidmarsh

This Article, prepared for a symposium on class actions, examines the problem of cy pres relief through the lens of ensuring that class actions have an optimal claim structure and class membership. It finds that the present cy pres doctrine does little to advance the creation of optimal class actions, and may do some harm to achieving that goal. The Article then proposes an alternative “nudge” to induce putative class counsel to structure class actions in an optimal way: set attorneys’ fees so that counsel is compensated through a combination of an hourly market rate and a percentage of the ...


Improving Predictability And Consistency In Class Action Tolling, Tanya Pierce Oct 2016

Improving Predictability And Consistency In Class Action Tolling, Tanya Pierce

Tanya Pierce

Class action tolling means that when parties in a suit allege federal treatment, the individual claims of putative class members are tolled federal courts while the class action is pending. Commonly referred to as American Pipe tolling, this rule prevents duplicative litigation that would result if plaintiffs were required to intervene or file independent lawsuits to protect their interests while the class action was pending. Federal courts have long settled the application of American Pipe tolling in scenarios involving later-filed individual actions. In other scenarios, however, the application of American Pipe tolling has caused considerable uncertainty. This Article examines the ...


Fiat Lux: Tracing A Standard Of Review For Class-Certification Orders, Curtis E.A. Karnow Oct 2016

Fiat Lux: Tracing A Standard Of Review For Class-Certification Orders, Curtis E.A. Karnow

The Journal of Appellate Practice and Process

No abstract provided.


Resurrecting Trial By Statistics, Jay Tidmarsh Jun 2016

Resurrecting Trial By Statistics, Jay Tidmarsh

Jay Tidmarsh

“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 ...


Class Certification Issues: In Re: National Football League Concussion Injury Litigation, Jessica Leigh Hawley Jun 2016

Class Certification Issues: In Re: National Football League Concussion Injury Litigation, Jessica Leigh Hawley

Pace Intellectual Property, Sports & Entertainment Law Forum

This paper will discuss whether the prerequisites of the Federal Rules of Civil Procedure, Rule 23, were properly applied in the certification of the class in the NFL Concussion Injury Litigation, with an emphasis on typicality. Discussion will begin with the general rule of class actions and drafter’s intent when the rule was enacted. It will then discuss the major amendment to the rule and the purpose of the amendment with a focus on typicality, and clarify the standard for the typicality requirement with a discussion of the United States Supreme Court decision in Amchem v. Georgine. The discussion ...


Carrot Or Stick? The Shift From Voluntary To Mandatory Disclosure Of Risk Factors, Karen K. Nelson, Adam C. Pritchard Jun 2016

Carrot Or Stick? The Shift From Voluntary To Mandatory Disclosure Of Risk Factors, Karen K. Nelson, Adam C. Pritchard

Articles

This study investigates risk factor disclosures, examining both the voluntary, incentive-based disclosure regime provided by the safe harbor provision of the Private Securities Litigation Reform Act as well as the SEC's subsequent mandate of these disclosures. Firms subject to greater litigation risk disclose more risk factors, update the language more from year to year, and use more readable language than firms with lower litigation risk. These differences in the quality of disclosure are pronounced in the voluntary disclosure regime, but converge following the SEC mandate as low-risk firms improved the quality of their risk factor disclosures. Consistent with these ...