Law Commons^™

Driving Diverse Representation Of Diverse Classes, Alissa Del Riego

University of Michigan Journal of Law Reform

Why have federal courts overwhelmingly appointed white men to represent diverse consumer classes? Rule 23(g) of the Federal Rules of Civil Procedure requires courts to appoint the attorneys “best able to represent the interests of class members” to serve as class counsel. But courts’ recurrent conclusion that white men best fit the federally mandated job description not only gives the appearance of discrimination, but harms class members that suffer from outcomes plagued by groupthink and cognitive biases. This Article sets out to uncover why white male repeat players continue to dominate class counsel appointments and proposes a practical and immediately …

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 …

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 …

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.

Ed Cooper, Rule 56, And Charles E. Clark's Fountain Of Youth, Steven S. Gensler

University of Michigan Journal of Law Reform

Nobody had a greater impact on the formulation of the original Civil Rules than Clark. His role as both the principal architect2 and the principal draftsman3 of the Civil Rules is well known. As Professor Wright once put it, although the Civil Rules were a joint effort, "the end product bears the unmistakable Clark stamp."4 But Clark started shaping the Civil Rules even before drafting began.5 Initially, Chief Justice Hughes thought the civil rules project should be limited to creating rules for actions at law (leaving in place-and separate-the existing equity rules).6 A passionate advocate for merging law and equity …

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.

Shoes That Did Not Drop, Richard Marcus

University of Michigan Journal of Law Reform

I take "Shoes That Did Not Drop"' as my topic because I appreciate, by now, that what the Advisory Committee on Civil Rules does not do is, in some ways, as important as what it does. Similarly, the decision not to do something is equally important as, and may be more difficult than, the decision to do something. It may sometimes seem that amending the Rules is too easy. Greg Joseph once said that they are amended as often as the telephone book. Some even think that it was a mistake to create a Rules Committee.3 These reactions are overstated, …

The Twelve-Person Federal Civil Jury In Exile, Thomas D. Rowe Jr.

University of Michigan Journal of Law Reform

In the mid-1990s, the Advisory Committee on Civil Rules, with Fifth Circuit Judge Patrick Higginbotham as Chair and our honoree, Professor Ed Cooper, in the early years of his long service as Reporter, unanimously (coincidentally, by a 12-0 vote) proposed an amendment to Federal Rule of Civil Procedure 48 that would have required the seating of twelve-member juries in federal civil trials. The requirement of a unanimous verdict, unless waived by the parties, and the abolition of alternate jurors would have been unaffected; attrition could reduce a jury's size below twelve members, with a floor of six unless the parties …

Some Very Personal Reflections On The Rules, Rulemaking, And Reporters, Arthur R. Miller

University of Michigan Journal of Law Reform

My entry into the world of federal rulemaking was one of those unpredictable but welcome fortuities of life. In early 1961, more than a half century ago, I was a happy and progressing associate in a prominent medium-sized, Wall Street, New York City law firm. Columbia Law School approached me to be the Associate Director of its newly formed Project on International Procedure. They dangled several attractive incentives: I could try my hand at teaching some civil procedure; hobnob with the giants of the Columbia faculty, like Herb Wechsler, Walter Gellhorn, Maury Rosenberg, and Jack Weinstein; and take my first …

Is Now The Time For Simplified Rules Of Civil Procedure, Paul V. Niemeyer

University of Michigan Journal of Law Reform

Unfortunately, any objective evaluation of current federal civil process will inevitably lead to the conclusion that the process is functioning inadequately in its purpose of discharging justice speedily and inexpensively. One need only ask any trial lawyer whether he can try a medium-sized commercial dispute to judgment in a federal court in less than three years and at a cost of less than six figures. Is the iconic appellation of "making a federal case out of a dispute" not the ultimate condemnation of current judicial process in federal courts? Can we understand the private bar's flight from federal courts to …

They Were Meant For Each Other: Professor Edward Cooper And The Rules Enabling Act, Mark R. Kravitz, David F. Levi, Lee H. Rosenthal, Anthony J. Scirica

University of Michigan Journal of Law Reform

This introduction to the essays in this Symposium illuminates Professor Ed Cooper's years as Reporter to the Civil Rules Committee by first briefly describing those who preceded him in the position and his own background. We then describe some of Ed Cooper's many contributions to the Civil Rules Committee, the Federal Rules, rulemaking, and civil procedure by examining the present state of the Rules Committees' work under the Rules Enabling Act. We conclude that after almost eighty years of experience under that Act, it is working well in large part because of the sound leadership provided by Ed Cooper over …

Edward Cooper As Curator Of The Civil Rules, Goeffrey C. Hazard Jr.

University of Michigan Journal of Law Reform

Ed Cooper has had a salient role in maintaining the Rules Committee process as a highly competent and stable element of lawmaking in this country. He is a consummate master of civil procedure and acutely understands the constitutional and political milieu in which the Rules process functions. Along with other similarly competent and observant Reporters, including the senior serving Reporter, Dan Coquillette, he has helped keep the Rules process and product as evenhanded as can be expected in our complicated legal system.

Federal Discovery Stays, Gideon Mark

University of Michigan Journal of Law Reform

In federal civil litigation, unless a discretionary stay is granted, discovery often proceeds while motions to dismiss are pending. Plaintiffs with non-meritorious cases can compel defendants to spend massively on electronic discovery before courts ever rule on such motions. Defendants who are unable or unwilling to incur the huge up-front expense of electronic discovery may be forced to settle non-meritorious claims. To address multiple electronic discovery issues, Congress amended the Federal Rules of Civil Procedure in 2006 and the Federal Rules of Evidence in 2008. However, the amendments failed to significantly reduce costs and failed to address the critical issue …

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 …

How Many Plaintiffs Are Enough? Venue In Title Vii Class Actions, Piper Hoffman

University of Michigan Journal of Law Reform

This Article critiques the recent rash of federal district court opinions holding that all named plaintiffs in a class action lawsuit alleging employment discrimination under Title VII of the Civil Rights Act of 1964 must satisfy the venue requirements in the court where they filed the action. Neither the text nor the history of Title VII requires this prevailing interpretation; to the contrary, requiring every named plaintiff to satisfy venue requirements in the same court undermines the legislative purpose behind both Title VII and Federal Rule of Civil Procedure 23 by creating a new obstacle to employees seeking to enforce …

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 …

Just Say "No Fishing": The Lure Of Metaphor, Elizabeth G. Thornburg

University of Michigan Journal of Law Reform

The phrase "fishing expedition" is widely used in popular culture and in the law. In the legal setting, reliance on the metaphor can act as a substitute for rigorous analysis, disguising the factors that influence the result in a case. At best, it is uninformative. Worse, the fishing metaphor may itself shape the court's attitude toward the issue or claim in a lawsuit.

This Article begins by tracing the development of the "fishing expedition" metaphor in civil cases, demonstrating how its changing uses reflect and contribute to the legal controversies of each era. The policies that originally supported limited use …

Deregulating Voluntary Dismissals, Michael E. Solimine, Amy E. Lippert

University of Michigan Journal of Law Reform

Federal Rule of Civil Procedure 41(a) and its state law counterparts permit, under certain circumstances, a plaintiff to voluntarily dismiss her lawsuit without prejudice. Within certain windows of opportunity, plaintiffs can take this unilateral action without the permission of the defendant or of the court, and without any conditions attached. When those windows are closed, plaintiffs can still seek dismissal with the approval of the defendant or of the court. This regime is problematic: giving plaintiffs this unilateral power is an anachronism in an age of managerial judging, and can be considerably inconvenient for defendants. Likewise, the case law has …

Did The Civil Justice Reform Act Of 1990 Actually Expire?, Carl Tobias

University of Michigan Journal of Law Reform

The Civil Justice Reform Act of 1990 (CJRA) was intended to reduce the expense and delay associated with federal district court litigation by requiring courts to study and adopt new procedures. The CJRA's gains, however, may be erased by the uncertainty surrounding its sunset provision. Professor Tobias argues that Congress or the Judicial Conference should resolve the uncertainty by proclaiming that the CJRA has expired, thus forcing districts to abrogate procedures inconsistent with the Federal Rules of Civil Procedure.

Summary Judgment Before The Completion Of Discovery: A Proposed Revision Of Federal Rule Of Civil Procedure 56(F), John F. Lapham

University of Michigan Journal of Law Reform

Part I of this Note discusses the purpose of summary judgment in a regime of notice pleading. Part II examines how the federal courts have interpreted and applied rule 56(f). Part III suggests that rule 56(f) be modified to require a more significant factual showing before a court may grant a continuance for further discovery. In addition, Part III examines the policy considerations that support a more stringent rule. Finally, Part IV provides a hypothetical example illustrating the benefits of this proposal.

The Constitutional Conundrum Of Black Lung Appeals: Two Proposed Solutions, Pete S. Michaels

University of Michigan Journal of Law Reform

Part I of this Article explains the statutory requirements that a black lung benefits claimant must meet and how these claimants' failure to meet statutory prerequisites results in the dismissal of their claims. Part II argues that the current procedures are inadequate to protect the rights of black lung benefits claimants. Dismissal of their claims violates the petitioners' rights to due process of law and pro se representation. Part III proposes two solutions to the crisis. The first proposal is simply a form that would be distributed to all claimants explaining the procedures they must follow to avoid dismissal. Part …

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.

A Proposal To View Patent Claim Nonobviousness From The Policy Perspective Of Federal Rule Of Civil Procedure 52(A), Bradley G. Lane

University of Michigan Journal of Law Reform

This Note analyzes the scope of appellate review that should be accorded to a trial judge's determination of nonobviousness. Part I details the condition of nonobviousness and how it has evolved into the principal obstacle to patentability. Part II analyzes the Supreme Court and appellate precedents on the scope of review on this issue. Part III evaluates the policy underpinnings of Rule 52(a) and applies a two-pronged analysis to the nonobviousness requirement to determine whether the clearly erroneous standard of review is appropriate. This Note concludes that the treatment of the nonobviousness determination as a question of law cannot be …

Proposals To Amend Rule 68- Time To Abandon Ship, Stephen B. Burbank

University of Michigan Journal of Law Reform

It is no surprise that, having included "facilitating the settlement of the case" as one of the objectives of pretrial conferences in the 1983 amendments to Rule 16 of the Federal Rules of Civil Procedure, the Advisory Committee has turned its attention to Rule 68. The Rule was intended to provide an incentive to settle by requiring that a prevailing claimant who has declined a more favorable offer of judgment pay post-offer "costs." But, in the Advisory Committee's view, Rule 68 has proved ineffective. The concern, apparently, is not that too few civil cases filed in federal court are settled-less …

The Applicability Of The Antitrust Procedures And Penalties Act Of 1974 To Voluntary Dismissals, Jon B. Jacobs

University of Michigan Journal of Law Reform

This Note argues that Congress should amend the APPA to require a judicial public interest determination prior to the entry of a voluntary dismissal in government-initiated civil antitrust actions. Part I of this Note briefly describes the APPA and Federal Rule of Civil Procedure 41(a)(1). Part II asserts that APPA procedures do not currently apply to voluntary dismissals under Rule 41(a)(1). Part III concludes that the purposes underlying the APPA and general policy considerations support the legislative extension of the Act to dismissals. Part IV responds to objections to this proposal. Finally, Part V presents a specific amendment to the …