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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 ...


In Personam And Beyond The Grasp: In Search Of Jurisdiction And Accountability For Foreign Defendants, Andrew F. Popper 2016 Selected Works

In Personam And Beyond The Grasp: In Search Of Jurisdiction And Accountability For Foreign Defendants, Andrew F. Popper

Andrew Popper

No abstract provided.


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 ...


An Opt-In Option For Class Actions, Scott Dodson 2016 UC Hastings College of the Law

An Opt-In Option For Class Actions, Scott Dodson

Michigan Law Review

Federal class actions today follow an opt-out model: absent an affirmative request to opt out, a class member is in the class. Supporters defend the opt-out model as necessary to ensure the viability of class actions and the efficacy of substantive law. Critics argue the opt-out model is a poor proxy for class-member consent and promotes overbroad and ill-defined classes; these critics favor an opt-in model. This bimodal debate—opt out vs. opt in—has obscured an overlooked middle ground that relies on litigant choice: Why not give the class the option to pursue certification on either an opt-out or ...


"Arising From" Villanova Law Review: Villanova Law Review's Analysis Of Personal Jurisdiction, Teressa E. Ravenell 2016 Villanova University Charles Widger School of Law

"Arising From" Villanova Law Review: Villanova Law Review's Analysis Of Personal Jurisdiction, Teressa E. Ravenell

Villanova Law Review

No abstract provided.


Modern Notice Through The Lens Of Eisen And Mullane, Tanya Pierce, Jeanne Finnegan 2016 Texas A&M University School of Law

Modern Notice Through The Lens Of Eisen And Mullane, Tanya Pierce, Jeanne Finnegan

Tanya Pierce

For the past two decades, a rapid and ongoing evolution has been taking place in today's communication media environments. Technology and social media have increased exponentially the American consumer's options for both intentional and random information gathering and learning. And, as more and more people move away from traditional avenues of receiving news and other information and toward electronic media, courts and litigants must fashion contemporary notice programs to communicate with absent class members in ways that will both resonate with these changing preferences and continue to be consistent with due process and Federal Rule of Civil Procedure ...


Shedding Light On Shady Grove: Further Reflections On The Erie Doctrine From A Conflicts Perspective, Joseph P. Bauer 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, Jay Tidmarsh 2016 Notre Dame Law School

Exiting Litigation, Jay Tidmarsh

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, Jay Tidmarsh, David Betson 2016 Notre Dame Law School

Optimal Class Size, Opt-Out Rights, And "Indivisible" Remedies, Jay Tidmarsh, David Betson

Jay Tidmarsh

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, Jay Tidmarsh 2016 Notre Dame Law School

Auctioning Class Settlements, Jay Tidmarsh

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, Jay Tidmarsh 2016 Notre Dame Law School

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 2016 Notre Dame Law School

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 ...


Resolving Cases On The Merits, Jay Tidmarsh 2016 Notre Dame Law School

Resolving Cases On The Merits, Jay Tidmarsh

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.


Class Actions Removability And The Changing Business Of The Supreme Court: Dart Cherokee Basin Operating Co. V. Owens, Stephen Carr 2016 University of Florida Levin College of Law

Class Actions Removability And The Changing Business Of The Supreme Court: Dart Cherokee Basin Operating Co. V. Owens, Stephen Carr

Florida Law Review

Problems of appellate jurisdiction are, by their nature, mainly pragmatic problems. The U.S. Circuit Courts of Appeals are forced to balance the need to provide timely, effective appellate review of district court decisions against the understandable desire for judicial economy.In addition to this inherent tension between fairness and economy, the law is constantly evolving, causing caseloads to wax and wane, and continuously forcing the circuit courts to react by expanding and contracting their rules of appellate jurisdiction. The U.S. Code generally limits appellate review to “final decisions,”and the U.S. Supreme Court has usually instructed the ...


Intervention In The Tax Court And The Appellate Review Of Tax Court Procedural Decisions, Cole Barnett, Christopher Weeg 2016 University of Florida Levin College of Law

Intervention In The Tax Court And The Appellate Review Of Tax Court Procedural Decisions, Cole Barnett, Christopher Weeg

Florida Law Review

The Tax Court is an Article I court. It resolves more than 95% of all tax-related litigation—actually nearly 97% of the total federal tax docket in 2012. Despite this substantial role in federal litigation, scholars and courts have generally put aside the issue of what standard is appropriate when a U.S. federal court of appeals reviews Tax Court procedural questions. Section 7482 of the Internal Revenue Code (I.R.C.) grants jurisdiction to the courts of appeals to review Tax Court decisions “in the same manner and to the same extent as decisions of the district courts in ...


Class Actions Removability And The Changing Business Of The Supreme Court: Dart Cherokee Basin Operating Co. V. Owens, Stephen Carr 2016 University of Florida Levin College of Law

Class Actions Removability And The Changing Business Of The Supreme Court: Dart Cherokee Basin Operating Co. V. Owens, Stephen Carr

Florida Law Review

Problems of appellate jurisdiction are, by their nature, mainly pragmatic problems. The U.S. Circuit Courts of Appeals are forced to balance the need to provide timely, effective appellate review of district court decisions against the understandable desire for judicial economy.In addition to this inherent tension between fairness and economy, the law is constantly evolving, causing caseloads to wax and wane, and continuously forcing the circuit courts to react by expanding and contracting their rules of appellate jurisdiction. The U.S. Code generally limits appellate review to “final decisions,”and the U.S. Supreme Court has usually instructed the ...


Intervention In The Tax Court And The Appellate Review Of Tax Court Procedural Decisions, Cole Barnett, Christopher Weeg 2016 University of Florida Levin College of Law

Intervention In The Tax Court And The Appellate Review Of Tax Court Procedural Decisions, Cole Barnett, Christopher Weeg

Florida Law Review

The Tax Court is an Article I court. It resolves more than 95% of all tax-related litigation—actually nearly 97% of the total federal tax docket in 2012. Despite this substantial role in federal litigation, scholars and courts have generally put aside the issue of what standard is appropriate when a U.S. federal court of appeals reviews Tax Court procedural questions. Section 7482 of the Internal Revenue Code (I.R.C.) grants jurisdiction to the courts of appeals to review Tax Court decisions “in the same manner and to the same extent as decisions of the district courts in ...


Postjudgment Cost Shifting: Electronic Discovery And 28 U.S.C § 1920(4), Samantha J. Kwartler 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.


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