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Articles 1 - 3 of 3
Full-Text Articles in Civil Procedure
Opting Out Of Discovery, Jay Tidmarsh
Opting Out Of Discovery, Jay Tidmarsh
Journal Articles
This Article proposes a system in which both parties are provided an opportunity to opt out of discovery. A party who opts out is immunized from dispositive motions, including a motion to dismiss for failure to state a claim or a motion for summary judgment. If neither party opts out of discovery, the parties waive jury-trial rights, thus giving judges the ability to use stronger case-management powers to focus the issues and narrow discovery. If one party opts out of discovery but an opponent does not, the cost of discovery shifts to the opponent. This Article justifies this proposal in …
Aggregation As Disempowerment: Red Flags In Class Action Settlements, Howard M. Erichson
Aggregation As Disempowerment: Red Flags In Class Action Settlements, Howard M. Erichson
Notre Dame Law Review
Class action critics and proponents cling to the conventional wisdom that class actions empower claimants. Critics complain that class actions over-empower claimants and put defendants at a disadvantage, while proponents defend class actions as essential to consumer protection and rights enforcement. This Article explores how class action settlements sometimes do the opposite. Aggregation empowers claimants’ lawyers by consolidating power in the lawyers’ hands. Consolidation of power allows defendants to strike deals that benefit themselves and claimants’ lawyers while disadvantaging claimants. This Article considers the phenomenon of aggregation as disempowerment by looking at specific settlement features that benefit plaintiffs’ counsel and …
The Compromise Of '38 And The Federal Courts Today, John H. Robinson
The Compromise Of '38 And The Federal Courts Today, John H. Robinson
Journal Articles
In 1998 the legal community of the United States should stop and take stock of two epochal events in the history of the federal judicial system. One of those events, as readers of a procedure symposium do not need to be told, is the sixtieth anniversary of the introduction of the Federal Rules of Civil Procedure. I shall have more to say about that event presently, but I want first to devote a few paragraphs to a second event, one which proceduralists ignore at their peril. The event I have in mind is the initiation of a new era of …