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Fiat Lux: Tracing A Standard Of Review For Class Certification Orders, Curtis E.A. Karnow 2016 California Superior Court (San Francisco)

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

Curtis E.A. Karnow

 An historical investigation of California’s  standards of review  of class certification orders, together with an analysis of the standard and its implications for the practical work of trial judges and lawyers litigating class actions. The article concludes by emphasizing the role of the trial plan in certification motions.


Repeat Players In Multidistrict Litigation - The Social Network.Docx, Elizabeth Chamblee Burch, Marjorie S. Williams 2016 University of Georgia School of Law

Repeat Players In Multidistrict Litigation - The Social Network.Docx, Elizabeth Chamblee Burch, Marjorie S. Williams

Elizabeth Chamblee Burch

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 ...


Monopolies In Multidistrict Litigation, Elizabeth Chamblee Burch 2016 University of Georgia School of Law

Monopolies In Multidistrict Litigation, Elizabeth Chamblee Burch

Elizabeth Chamblee Burch

When transferee judges receive a multidistrict proceeding, they select a few lead plaintiffs’ lawyers to efficiently manage litigation and settlement negotiations. That decision gives those attorneys total control over all consolidated plaintiffs’ claims and rewards them richly in common-benefit fees. It’s no surprise then that these are coveted positions, yet empirical evidence confirms that the same attorneys occupy them time and again.

Anytime repeat players exist and exercise both oligopolistic leadership control across multidistrict proceedings and monopolistic power within a single proceeding, there is concern that they will use their dominance to enshrine practices and norms that benefit themselves ...


Is The Supreme Court Disabling The Enabling Act, Or Is Shady Grove Just Another Bad Opera?, Robert J. Condlin 2016 University of Maryland Francis King Carey School of Law

Is The Supreme Court Disabling The Enabling Act, Or Is Shady Grove Just Another Bad Opera?, Robert J. Condlin

Faculty Scholarship

After seventy years of trying, the Supreme Court has yet to agree on whether the Rules Enabling Act articulates a one or two part standard for determining the validity of a Federal Rule. Is it enough that a Federal Rule regulates “practice and procedure,” or must it also not “abridge substantive rights”? The Enabling Act seems to require both, but the Court is not so sure, and the costs of its uncertainty are real. Among other things, litigants must guess whether the decision to apply a Federal Rule in a given case will depend upon predictable ritual, judicial power grab ...


Foreign Judgments In Florida Bankruptcy Courts: Choice Of Law, Statutes Of Limitations, And Other Unresolved Issues, Michael Raudebaugh 2016 Barry University School of Law

Foreign Judgments In Florida Bankruptcy Courts: Choice Of Law, Statutes Of Limitations, And Other Unresolved Issues, Michael Raudebaugh

Barry Law Review

No abstract provided.


After Halliburton: Event Studies And Their Role In Federal Securities Fraud Litigation, Jill E. Fisch, Jonah B. Gelbach, Jonathan Klick 2016 University of Pennsylvania Law School

After Halliburton: Event Studies And Their Role In Federal Securities Fraud Litigation, Jill E. Fisch, Jonah B. Gelbach, Jonathan Klick

Jill Fisch

Event studies have become increasingly important in securities fraud litigation after the Supreme Court’s decision in Halliburton II. Litigants have used event study methodology, which empirically analyzes the relationship between the disclosure of corporate information and the issuer’s stock price, to provide evidence in the evaluation of key elements of federal securities fraud, including materiality, reliance, causation, and damages. As the use of event studies grows and they increasingly serve a gatekeeping function in determining whether litigation will proceed beyond a preliminary stage, it will be critical for courts to use them correctly.

This Article explores an array ...


Start Making Sense: An Analysis And Proposal For Insider Trading Regulation, Jill E. Fisch 2016 University of Pennsylvania Law School

Start Making Sense: An Analysis And Proposal For Insider Trading Regulation, Jill E. Fisch

Jill Fisch

No abstract provided.


Lawyers On The Auction Block: Evaluation And Selection Of Class Counsel By Auction, Jill E. Fisch 2016 University of Pennsylvania Law School

Lawyers On The Auction Block: Evaluation And Selection Of Class Counsel By Auction, Jill E. Fisch

Jill Fisch

The lead counsel auction has attracted increasing attention. Auction advocates mgue that auctions introduce competitive market forces that improve the selection and compensation of class counsel. The benefits of the auction, the;' claim, include lower legal fees and better representation. Careful scrutiny reveals that auction advocates have overlooked substantial methodological problems with the design and implementation of the lead counsel auction. Even if these problems were overcome, the auction procedure is flawed: Auctions are poor tools for selecting firms based on multiple criteria, compromise the judicial role, and are unlikely to produce reasonable fee awards. Although the existing record is ...


Captive Courts: The Destruction Of Judicial Decisions By Agreement Of The Parties, Jill E. Fisch 2016 University of Pennsylvania Law School

Captive Courts: The Destruction Of Judicial Decisions By Agreement Of The Parties, Jill E. Fisch

Jill Fisch

No abstract provided.


After Halliburton: Event Studies And Their Role In Federal Securities Fraud Litigation, Jill E. Fisch, Jonah B. Gelbach, Jonathan Klick 2016 University of Pennsylvania Law School

After Halliburton: Event Studies And Their Role In Federal Securities Fraud Litigation, Jill E. Fisch, Jonah B. Gelbach, Jonathan Klick

Jill Fisch

Event studies have become increasingly important in securities fraud litigation after the Supreme Court’s decision in Halliburton II. Litigants have used event study methodology, which empirically analyzes the relationship between the disclosure of corporate information and the issuer’s stock price, to provide evidence in the evaluation of key elements of federal securities fraud, including materiality, reliance, causation, and damages. As the use of event studies grows and they increasingly serve a gatekeeping function in determining whether litigation will proceed beyond a preliminary stage, it will be critical for courts to use them correctly.

This Article explores an array ...


Litigation Reform: An Institutional Approach, Stephen B. Burbank, Sean Farhang 2016 Univ of Penn Law School

Litigation Reform: An Institutional Approach, Stephen B. Burbank, Sean Farhang

Sean Farhang

The program of regulation through private litigation that Democratic Congresses purposefully created starting in the late 1960s soon met opposition emanating primarily from the Republican party. In the long campaign for retrenchment that began in the Reagan administration, consequential reform proved difficult and ultimately failed in Congress. Litigation reformers turned to the courts and, in marked contrast to their legislative failure, were well-rewarded, achieving growing rates of voting support from an increasingly conservative Supreme Court on issues curtailing private enforcement under individual statutes. We also demonstrate that the judiciary’s control of procedure has been central to the campaign to ...


Class Actions And The Counterrevolution Against Federal Litigation, Stephen B. Burbank, Sean Farhang 2016 University of Pennsylvania Law School

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

Sean Farhang

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 ...


Federal Court Rulemaking And Litigation Reform: An Institutional Approach, Stephen B. Burbank, Sean Farhang 2016 University of Pennsylvania Law School

Federal Court Rulemaking And Litigation Reform: An Institutional Approach, Stephen B. Burbank, Sean Farhang

Sean Farhang

The purpose of this article is to advance understanding of the role that federal court rulemaking has played in litigation reform. For that purpose, we created original data sets that include (1) information about every member of the Advisory Committee on Civil Rules who served from 1960 to 2013, and (2) every proposal for amending the Federal Rules that the Advisory Committee approved for consideration by the Standing Committee during the same period and that had implications for private enforcement. We show that, beginning in 1971, when a succession of Chief Justices appointed by Republican Presidents have chosen committee members ...


The Subterranean Counterrevolution: The Supreme Court, The Media, And Litigation Reform, Stephen B. Burbank, Sean Farhang 2016 University of Pennsylvania Law School

The Subterranean Counterrevolution: The Supreme Court, The Media, And Litigation Reform, Stephen B. Burbank, Sean Farhang

Sean Farhang

This article is part of a larger project to study the counterrevolution against private enforcement of federal law from an institutional perspective. In a series of articles emerging from the project, we show 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 private enforcement. An institutional perspective helps to explain the outcome we document: the long-term erosion of the infrastructure of private enforcement as a result of ...


Federal Court Rulemaking And Litigation Reform: An Institutional Approach, Stephen B. Burbank, Sean Farhang 2016 University of Pennsylvania Law School

Federal Court Rulemaking And Litigation Reform: An Institutional Approach, Stephen B. Burbank, Sean Farhang

Sean Farhang

No abstract provided.


Disruptions' Function: A Defense Of (Some) Form Objections Under The Federal Rules Of Civil Procedure, Amir Shachmurove 2016 Seton Hall University

Disruptions' Function: A Defense Of (Some) Form Objections Under The Federal Rules Of Civil Procedure, Amir Shachmurove

Seton Hall Circuit Review

No abstract provided.


After Halliburton: Event Studies And Their Role In Federal Securities Fraud Litigation, Jill E. Fisch, Jonah B. Gelbach, Jonathan Klick 2016 University of Pennsylvania Law School

After Halliburton: Event Studies And Their Role In Federal Securities Fraud Litigation, Jill E. Fisch, Jonah B. Gelbach, Jonathan Klick

Faculty Scholarship

Event studies have become increasingly important in securities fraud litigation after the Supreme Court’s decision in Halliburton II. Litigants have used event study methodology, which empirically analyzes the relationship between the disclosure of corporate information and the issuer’s stock price, to provide evidence in the evaluation of key elements of federal securities fraud, including materiality, reliance, causation, and damages. As the use of event studies grows and they increasingly serve a gatekeeping function in determining whether litigation will proceed beyond a preliminary stage, it will be critical for courts to use them correctly.

This Article explores an array ...


Shhh: Eighth Circuit Puts Conservationists Intervenor To Bed In Quiet Title Action In North Dakota Ex Rel. Stenehjem V. United States, Matthew K. Arnold 2016 Villanova University Charles Widger School of Law

Shhh: Eighth Circuit Puts Conservationists Intervenor To Bed In Quiet Title Action In North Dakota Ex Rel. Stenehjem V. United States, Matthew K. Arnold

Villanova Environmental Law Journal

No abstract provided.


Casenote Update: The Supreme Court Restricts Plaintiff Options For Climate Change Litigation In American Electric Power Co. V. Connecticut, Matthew R. Weiss 2016 Villanova University Charles Widger School of Law

Casenote Update: The Supreme Court Restricts Plaintiff Options For Climate Change Litigation In American Electric Power Co. V. Connecticut, Matthew R. Weiss

Villanova Environmental Law Journal

No abstract provided.


Neutralizing The Stratagem Of "Snap Removal": A Proposed Amendment To The Judicial Code, Joan Steinman, Arthur Hellman, Lonny Hoffman, Thomas Rowe, Georgene Vairo 2016 University of Pittsburgh School of Law

Neutralizing The Stratagem Of "Snap Removal": A Proposed Amendment To The Judicial Code, Joan Steinman, Arthur Hellman, Lonny Hoffman, Thomas Rowe, Georgene Vairo

All Faculty Scholarship

The “Removal Jurisdiction Clarification Act” is a narrowly tailored legislative proposal designed to resolve a widespread conflict in the federal district courts over the proper interpretation of the statutory “forum-defendant” rule. The forum-defendant rule prohibits removal of a diversity case “if any of the parties in interest properly joined and served as defendants is a citizen of the [forum state].” 28 U.S.C. § 1441(b)(2) (emphasis added). Some courts, following the “plain language” of the statute, hold that defendants can avoid the constraints of the rule by removing diversity cases to federal court when a citizen of the ...


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