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- Federal Rules of Civil Procedure (11)
- Law reform (11)
- Civil Rules Committee (10)
- Class actions (9)
- Rule 23 (8)
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- History (6)
- United States Supreme Court (6)
- Cooper (Edward) (5)
- Rulemaking (5)
- AT&T Mobility LLC v. Concepcion (3)
- Arbitration (3)
- Federal Arbitration Act (3)
- Access to the courts (2)
- Bias (2)
- Class arbitration (2)
- Incentives (2)
- Juries (2)
- Legislative drafting (2)
- Power (2)
- Wal-Mart Stores Inc. v. Dukes (2)
- Amchem Products Inc. v. Windsor (1)
- Authority (1)
- California (1)
- Clark (Charles E.) (1)
- Class certifications (1)
- Class waivers (1)
- Cohesion (1)
- Contracts of adhesion (1)
- Court costs (1)
- Empirical studies (1)
Articles 1 - 16 of 16
Full-Text Articles in Law
Walking The Class Action Maze: Toward A More Functional Rule 23, Robert G. Bone
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
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
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
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
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
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
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
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
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
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
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.
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
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
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
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.
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.