Law Commons^™

Employment Arbitration Reform: Preserving The Right To Class Proceedings In Workplace Disputes, Javier J. Castro

University of Michigan Journal of Law Reform

The recent judicial enforcement of class waivers in arbitration agreements has generated ample debate over the exact reach of these decisions and their effects on the future of collective action for consumers and employees. In AT&T Mobility v. Concepcion, a 5-4 majority of the Supreme Court majority held that the Federal Arbitration Act (FAA) preempted state laws prohibiting companies from incorporating class action waivers into arbitration agreements. The Court upheld such waivers on the grounds that they are consistent with the language and underlying purpose of the FAA. Most courts across the country have since reinforced the strong federal policy …

Walking The Class Action Maze: Toward A More Functional Rule 23, Robert G. Bone

University of Michigan Journal of Law Reform

Over roughly the past fifteen years, the Supreme Court and lower federal courts have limited access to class actions. Many of the more restrictive decisions-such as Amchem Products, Inc. v. Windsor, Ortiz v. Fibreboard Corp., and Wal- Mart Stores, Inc. v. Dukes-are based on interpretations of Rule 23 and thus fall within the power of the Advisory Committee and rulemaking process to modify. This Article proposes revisions to Rule 23 designed to deal with some of these decisions and to make the class action a more pragmatic and functional device. It focuses on two areas: (1) the constraints imposed by …

The Future Of Classwide Punitive Damages, Catherine M. Sharkey

University of Michigan Journal of Law Reform

Conventional wisdom holds that the punitive damages class action is susceptiblenot only to doctrinal restraints imposed on class actions but also to constitutionaldue process limitations placed on punitive damages. Thus, it would seem that theprospects for punitive damages classes are even grimmer than for class actionsgenerally.This conventional picture misunderstands the role of punitive damages and, inparticular, the relationship between class actions and punitive damages. It eitherignores or underestimates the distinctly societal element of punitive damages, whichmakes them especially conducive to aggregate treatment. Furthermore, punitivedamages classes offer a solution to the constitutional due process problem of juriesawarding "classwide" damages in a …

To Skin A Cat: Qui Tam Actions As A State Legislative Response To Concepcion, Janet Cooper Alexander

University of Michigan Journal of Law Reform

The Supreme Court's decision in Concepcion is widely regarded as heralding the demise of small-claims class actions whenever contracts of adhesion are involved in the transaction-which means for virtually all consumer and employment claims. Amending the Federal Arbitration Act to overturn Concepcion would be a relatively simple exercise in legislative drafting, but in the current political climate such efforts are unlikely to succeed. Thus far, proposed federal corrective legislation has failed to pass, and federal agency regulation of class waivers has been lacking. State legislatures might have the political ability to pass corrective legislation, but virtually all state limitations on …

An Experiment In Law Reform: Amchem Products V. Windsor, Patrick M. Hanlon

University of Michigan Journal of Law Reform

The Supreme Court's 1997 decision in Amchem Products, Inc. v. Windsor struck down the most ambitious settlement class action ever attempted. The settlement was, however, the logical outgrowth of the federal judiciary's efforts in the early 1990s to resolve a "disaster" of "critical proportions." Many factors, not least the Supreme Court's decision in Amchem, turned the tide against this trend. Ironically, however, the post-Amchem world has come to look a lot like Amchem. The settlement's central feature-deferral of unimpaired claims to assure the availability of resources to compensate the sick-was subsequently incorporated (either by statute or through judicial decision) into …

Class Action Litigation After Dukes: In Search Of A Remedy For Gender Discrimination In Employment, Cindy A. Schipani, Terry Morehead Dworkin

University of Michigan Journal of Law Reform

In this Article we argue for substantial reforms to our system of combating workplace gender discrimination in light of the Supreme Court's ruling in Wal-Mart Stores, Inc. v. Dukes. To help counter discrimination victims' decreasing access to the courts, our proposals call for a narrow construction of the holding of Dukes. At the same time, agencies such as the Equal Employment Opportunity Commission (EEOC), the Office of Federal Contract Compliance Programs (OFCCP), and the Securities and Exchange Commission (SEC) can better use their regulatory authority to address gender discrimination. Further, regulatory agencies, arbitrators, and courts can mandate mentoring programs to …

The Future Of Securities Class Actions Against Foreign Companies: China And Comity Concerns, Dana M. Muir, Junhai Liu, Haiyan Xu

University of Michigan Journal of Law Reform

In Morrison v. National Australia Bank Ltd., the U.S. Supreme Court limited the application of U.S. securities fraud law in transnational situations. The Supreme Court noted that its decision was influenced by international comity considerations. In this Article, we evaluate the availability of class actions in China in cases involving alleged securities fraud. Because we find that the availability of those actions is too limited to fully protect U.S. shareholders, we argue that U.S. investors should be permitted to bring securities fraud class actions against non-U.S. companies whose securities are traded on a U.S. exchange regardless of where those investors …

Concepcion's Pro-Defendant Biasing Of The Arbitration Process: The Class Counsel Solution, David Korn, David Rosenberg

University of Michigan Journal of Law Reform

By mandating that numerous plaintiffs litigate their common question claims separately in individual arbitrations rather than jointly in class action arbitrations, the Supreme Court in AT&T Mobility LLC v. Concepcion entrenched a potent structural and systemic bias in favor of defendants. The bias arises from the parties' divergent stakes in the outcome of the common question litigation in individual arbitrations: each plaintiff will only invest to maximize the value of his or her own claim, but the defendant has an incentive to protect its entire exposure and thus will have a classwide incentive to invest more in contesting common questions. …

Protecting The Right Of Citizens To Aggregate Small Claims Against Businesses, Paul D. Carrington

University of Michigan Journal of Law Reform

Two years ago I ranted against the Supreme Court's subversion of the Rules Enabling Act and its opposition to the benign aims of the twentieth-century progressive law reformers expressed summarily in Rule 1 of our Federal Rules of Civil Procedure. I observed then that the majority of the Justices of the Supreme Court appeared to have joined the Chamber of Commerce, aligning themselves also with Vice President Dan Quayle's 1989 Council on Competitiveness that denounced effective civil procedure as an enemy of economic development. I was then commenting adversely on what the Court had done to transform Rule 8. I …

Iron Man Of The Rules, Patrick E. Higginbotham

University of Michigan Journal of Law Reform

To grasp Professor Cooper's contribution to rulemaking, it is helpful to review issues that the Advisory Committee confronted during his tenure. I will focus on the first four of his twenty years of service.

Professor Edward Cooper: The Quintessential Reporter, Mary Kay Kane

University of Michigan Journal of Law Reform

Ed Cooper's twenty-year service as the Chief Reporter for the Civil Rules Advisory Committee deserves special recognition and tribute not only because of its longevity-which is remarkable in and of itself-but more particularly, because of the scope and depth of the rule changes he has helped to shepherd into law.

Professor Ed Cooper: Zen Minimalist, Linda S. Mullenix

University of Michigan Journal of Law Reform

In celebration of his twentieth year as the Reporter for the Advisory Committee on Civil Rules, I write to contribute some modest reflections on Professor Cooper's tenure as Advisory Committee Reporter. My comments are those of an academic who had the opportunity to observe the Advisory Committee for nearly a decade, but they are largely the comments of an outsider. Readers might be disappointed to find that there is no dish or inside baseball here.

The Unjustified Judicial Creation Of Class Certification Merits Trials In Securities, Michael J. Kaufman, John M. Wunderlich

University of Michigan Journal of Law Reform

The class action device is vital to deterring securities fraud and remedying its victims, who almost never suffer losses sufficient to justify an individual suit. Nonetheless, the federal courts have begun to convert the class certification process into a premature trial on the merits, thereby precluding victims of securities fraud from pursuing otherwise valid claims of financial wrongdoing. In particular, in a series of important decisions, the federal courts have required plaintiffs to prove the essential elements of their securities fraud claims at the preliminary class certification stage.

This Article demonstrates why this trend should end. The judicial creation of …

Where Equity Meets Expertise: Re-Thinking Appellate Review In Complex Litigation, Michael J. Hays

University of Michigan Journal of Law Reform

The field of complex litigation continues to grow as both an academic study and a popular phenomenon. One cannot escape news accounts of major class action litigation, and lawyers continue to find new ways to push the outer bounds of civil litigation practices to accommodate large-scale disputes involving multiple claims or parties. Many question whether traditional procedures can or should apply to these cases. Drawing on this well-recognized procedural tension, this Article explores the relationship between trial and appellate courts in complex litigation and argues for a revised standard of appellate review for trial court decisions affecting the party structure …

Why Children Still Need A Lawyer, Marcia Robinson Lowry, Sara Bartosz

University of Michigan Journal of Law Reform

Every day approximately 500,000 children across the United States wake up in foster care, most in foster family homes, though many others in group homes and institutions. These children entered the state foster care system as innocent victims of abuse or neglect occurring in their birth homes. As wards of the state, they depend completely on the government to provide for their essential safety and wellbeing and to reconnect them with a permanent family, hopefully their own.

Though state child welfare agencies possess fundamental legal obligations under the United States Constitution and federal and state statutes to provide adequate care …

Two (Federal) Wrongs Make A (State) Right: State Class Action Procedures As An Alternative To The Opt-In Class Action Provisions Of The Adea, Janet M. Bowermaster

University of Michigan Journal of Law Reform

This Article argues that the opt-in class action of the ADEA is an anachronism and that age-discrimination litigants can take advantage of the broader protection afforded to Title VII litigants by bringing their ADEA suits as Rule 23 class actions in state courts. A comparison of the two statutes reveals similar purposes and nearly identical substantive provisions, but procedural provisions that provide less protection to victims of age discrimination, including widely disparate class-action provisions.

Preclusion And Procedural Due Process In Rule 23(B)(2) Class Actions, Mark C. Weber

University of Michigan Journal of Law Reform

This Article examines whether Rule 23(b)(2) violates the procedural due process rights of absent class members by binding them to the judgment in a class case without notice of the suit. It concludes that the Rule almost certainly violates due process and proposes a reform that would permit nonbinding class actions similar to the old "spurious" class suits.