Fiat Lux: Tracing A Standard Of Review For Class Certification Orders, 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
Repeat Players In Multidistrict Litigation - The Social Network.Docx, 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
Monopolies In Multidistrict Litigation, 2016 University of Georgia School of Law
Monopolies In Multidistrict Litigation, Elizabeth Chamblee Burch
Elizabeth Chamblee Burch
Is The Supreme Court Disabling The Enabling Act, Or Is Shady Grove Just Another Bad Opera?, 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
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 ...
Modern Notice Through The Lens Of Eisen And Mullane, 2016 Texas A&M University School of Law
Modern Notice Through The Lens Of Eisen And Mullane, Tanya Pierce, Jeanne Finnegan
Shedding Light On Shady Grove: Further Reflections On The Erie Doctrine From A Conflicts Perspective, 2016 Notre Dame Law School
Shedding Light On Shady Grove: Further Reflections On The Erie Doctrine From A Conflicts Perspective, Joseph P. Bauer
Joseph P. Bauer
This Article, a contribution to the Notre Dame Law Review symposium issue on the Supreme Court’s recent Shady Grove decision, is a follow-up to an article published in the same journal eleven years ago, in which I suggested that the Erie doctrine could be usefully informed by drawing on caselaw and jurisprudence from the horizontal choice of law setting. Shady Grove addressed the question of whether a New York state law, barring the assertion of claims for statutory damages, was binding in an action brought in the federal courts, or whether Federal Rule 23, which does not contain a ...
Exiting Litigation, 2016 Notre Dame Law School
Exiting Litigation, Jay Tidmarsh
The American judicial system will face significant challenges in the twenty-first century. One of its immediate challenges is adapting the rules of civil procedure to the stresses under which the civil-justice system operates. Some of the most notable pressures arise from transnational litigation, mass litigation, proliferation of claims against governmental and corporate institutions, and competition from methods of alternative dispute resolution that promise to dispense cheaper, faster, and more satisfying justice.
Optimal Class Size, Opt-Out Rights, And "Indivisible" Remedies, 2016 Notre Dame Law School
Optimal Class Size, Opt-Out Rights, And "Indivisible" Remedies, Jay Tidmarsh, David Betson
Prepared for a Symposium on the ALI’s Aggregate Litigation Project, this paper examines the ALI’s proposal to permit opt-out rights when remedies and “divisible,” but not to permit them when remedies are “indivisible.” Starting from the ground up, the paper employs economic analysis to determine what the optimal size of a class action should be. We demonstrate that, in some circumstances, the optimal size of a class is a class composed of all victims, while in other cases, the optimal size is smaller. We further argue that courts should consider optimal class size in determining whether to certify ...
Auctioning Class Settlements, 2016 Notre Dame Law School
Auctioning Class Settlements, Jay Tidmarsh
Although they promise better deterrence at a lower cost, class actions are infected with problems that can keep them from delivering on this promise. One of these problems occurs when the agents for the class (the class representative and class counsel) advance their own interests at the expense of the class. Controlling agency cost, which often manifests itself at the time of settlement, has been the impetus behind a number of class-action reform proposals. This Article develops a proposal that, in conjunction with reforms in fee structure and opt-out rights, controls agency costs at the time of settlement. The idea ...
Superiority As Unity, 2016 Notre Dame Law School
Superiority As Unity, 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, 2016 Notre Dame Law School
Cy Pres And The Optimal Class Action, 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 ...
Resolving Cases On The Merits, 2016 Notre Dame Law School
Resolving Cases On The Merits, Jay Tidmarsh
Prepared for a Symposium on Civil Justice Reform, this essay examines the role of the “on the merits” principle in modern American procedure. After surveying the possible meanings of the phrase, the essay critiques its most common understanding due to its economic inefficiency and its lack of strong philosophical support. Relying on the recent work of Amartya Sen, the essay proposes that the principle be replaced with a “fair outcome” principle that melds both “procedural” and “substantive” concerns.
Postjudgment Cost Shifting: Electronic Discovery And 28 U.S.C § 1920(4), 2016 St. John's University School of Law
Postjudgment Cost Shifting: Electronic Discovery And 28 U.S.C § 1920(4), Samantha J. Kwartler
St. John's Law Review
No abstract provided.
Private Solutions To Global Crises, 2016 St. John's University School of Law
Private Solutions To Global Crises, Gregory R. Day
St. John's Law Review
No abstract provided.
Improving Predictability And Consistency In Class Action Tolling, 2016 Texas A&M University School of Law
Improving Predictability And Consistency In Class Action Tolling, 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 ...
Davidson V. Davidson, 132 Nev. Adv. Op. 71 (Sept. 29, 2016), 2016 Nevada Law Journal
Davidson V. Davidson, 132 Nev. Adv. Op. 71 (Sept. 29, 2016), Hunter Davidson
Nevada Supreme Court Summaries
The Court determined that: (1) the six-year statute of limitations in NRS 11.190(1)(a) applies to claims for enforcement of a property distribution provision in a divorce decree; and (2) the statute of limitations period in an action on a divorce decree commences “from the last transaction or the last item charged or last credit given.”
Should Trial By Jury Be Eliminated In Complex Cases, 2016 University of New Hampshire
Should Trial By Jury Be Eliminated In Complex Cases, Hugh H. Bownes
RISK: Health, Safety & Environment
One way in which the public participates in the management of risk is as jurors. Here, the function of juries in civil litigation is discussed and the argument is made that problems with juries in complex cases may be solved by means short of eliminating juries altogether.
Exploring Federal Diversity Jurisdiction: Testimony In Front Of The House Of Representatives Committee On The Judiciary, Subcommittee On The Constitution And Civil Justice, 2016 Dean, University of Baltimore School of Law
Exploring Federal Diversity Jurisdiction: Testimony In Front Of The House Of Representatives Committee On The Judiciary, Subcommittee On The Constitution And Civil Justice, Ronald Weich
All Faculty Scholarship
Good morning Chairman Franks, Ranking Member Cohen and members of the Subcommittee. My name is Ronald Weich and I am the dean of the University of Baltimore School of Law. Thank you for the opportunity to testify at this hearing entitled “Exploring Federal Diversity Jurisdiction.”
The subject of today’s hearing is technical, complex, little-understood by the general public, and yet fundamental to the administration of justice in this country. Federal diversity jurisdiction touches on profound questions of federalism, state sovereignty and the proper functioning of the federal courts.
The Reduced Form Of Litigation Models And The Plaintiff's Win Rate, 2016 University of Pennsylvania Law School
The Reduced Form Of Litigation Models And The Plaintiff's Win Rate, Jonah B. Gelbach
In this paper I introduce what I call the reduced form approach to studying the plaintiff's win rate in litigation selection models. A reduced form comprises a joint distribution of plaintiff's and defendant's beliefs concerning the probability that the plaintiff would win in the event a dispute were litigated; a conditional win rate function that tells us the actual probability of a plaintiff win in the event of litigation, given the parties' subjective beliefs; and a litigation rule that provides the probability that a case will be litigated given the two parties' beliefs. I show how models ...
Revisiting Eisenberg And Plaintiff Success: State Court Civil Trial And Appellate Outcomes, 2016 Cornell Law School
Revisiting Eisenberg And Plaintiff Success: State Court Civil Trial And Appellate Outcomes, Michael Heise, Martin T. Wells
Cornell Law Faculty Publications
Despite what Priest-Klein theory predicts, in earlier research on federal civil cases, Eisenberg found an association between plaintiff success in pretrial motions and at trial. Our extension of Eisenberg’s analysis 20 years later into the state court context, however, does not uncover any statistically significant association between a plaintiff’s success at trial and preserving that trial victory on appeal. Our results imply that a plaintiff’s decision to pursue litigation to a trial court conclusion is analytically distinct from the plaintiff’s decision to defend an appeal of its trial court win brought by a disgruntled defendant. We ...