Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 4 of 4
Full-Text Articles in Law
Class Certification’S Preclusive Effects, Kevin M. Clermont
Class Certification’S Preclusive Effects, Kevin M. Clermont
Kevin M. Clermont
In September 2010, the Supreme Court granted certiorari in the controversial Baycol litigation. The central question will be whether, subsequent to a denial of class certification, preclusion can prevent an absentee from seeking to certify another class action on a similar claim. This Essay answers that question in the affirmative, while warning that the preclusion is very limited in scope. It arrives at this answer by analogizing to the more established doctrine of jurisdiction to determine no jurisdiction: if a court’s finding of no jurisdiction over the subject matter or the person can preclude, then a finding of no authority …
Cy Pres And The Optimal Class Action, Jay Tidmarsh
Cy Pres And The Optimal Class Action, Jay Tidmarsh
Jay Tidmarsh
Prepared for a symposium on class actions, this Article examines the problem of cy pres relief in class actions through the lens of 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 that it 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: setting attorneys’ fees so that counsel is compensated through a combination of an hourly market rate and a percentage of the net …
Morphing Case Boundaries In Multidistrict Litigation Settlements, Margaret Thomas
Morphing Case Boundaries In Multidistrict Litigation Settlements, Margaret Thomas
Margaret S. Thomas
The boundaries of federal multidistrict litigation (MDL) are blurring, as district courts seek innovative ways to facilitate global settlements to resolve multijurisdictional, multidimensional, national mass torts. The techniques emerging from the district courts have mostly evaded appellate review and received little scholarly attention, but they raise important challenges to traditional understandings of the nature of MDL and complex litigation. This Article argues that factually similar cases proceeding in multiple court systems in mass tort disputes create a “federalism problem” for global settlements: global settlements typically benefit from oversight by a single judge, but often there is no single judge who …
Revisiting The Government As Plaintiff, Elizabeth Chamblee Burch
Revisiting The Government As Plaintiff, Elizabeth Chamblee Burch
Elizabeth Chamblee Burch
This is a symposium essay dedicated to the late Richard Nagareda and written in response to Adam S. Zimmerman's piece, The Corrective Justice State. As Professor Zimmerman recognizes, the debate over governments acting as plaintiffs and “regulating by deal” has shifted from initial questions over whether litigation produces the best public policy and whether executive officials are acting within the scope of their authority to how government actors should pursue and allocate settlements. Yet, as this first wave of controversy suggests, the slate upon which executive officials currently write is neither clean nor uncontroversial. Instead, this new debate is playing …