Law Commons^™

The Litigation Budget, Jay Tidmarsh

Jay Tidmarsh

Because of fears that litigation is too costly, reduction of litigation expenses has been the touchstone of procedural reform for the past thirty years. In certain circumstances, however, the parties have incentives—both rational and irrational—to spend more on a lawsuit than the social benefits that the case provides. Present and proposed reform efforts do not adequately address these incentives, and, in some instances, exacerbate the parties’ incentives to overspend. The best way to ensure that the cost of a lawsuit does not exceed the benefits that it provides to the parties and society is to control spending directly: to require …

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 achieve …

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 a class, …

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 …

Resurrecting Trial By Statistics, Jay Tidmarsh

Jay Tidmarsh

“Trial by statistics” was a means by which a court could resolve a large number of aggregated claims: a court could try a random sample of claim, and extrapolate the average result to the remainder. In Wal-Mart, Inc. v. Dukes, the Supreme Court seemingly ended the practice at the federal level, thus removing from judges a tool that made mass aggregation more feasible. After examining the benefits and drawbacks of trial by statistics, this Article suggests an alternative that harnesses many of the positive features of the technique while avoiding its major difficulties. The technique is the “presumptive judgment”: a …

Complex Litigation And The Adversary System, Jay Tidmarsh, Roger Trangsrud

Jay Tidmarsh

A law school level coursebook on complex litigation and the adversary system. The book examines the four ways in which cases can be complex: joinder issues, pretrial issues, trial issues, and remedial issues. The book challenges the reader to consider whether the prevailing doctrines in these areas are consistent with modern adversarial theory, with the aspirations of our system of justice, and with a democratic system’s constraints on judicial power. One volume.

Modern Complex Litigation, Jay Tidmarsh, Roger Trangsrud

Jay Tidmarsh

Modern Complex Litigation is the successor to Complex Litigation and the Adversary System, which was published in 1998. Due to the many developments in this field, the authors have reorganized and completely rewritten the text. Most of the principal cases used in the new edition have been decided since 1998, and many of the notes discuss cases, literature, and developments that have arisen in the past decade. In the interest of creating an accessible, student-friendly text, the book has been substantially shortened through the careful editing of cases and the use of short, informative notes. At the same time, the …

Complex Litigation: Problems In Advanced Civil Procedure, Jay Tidmarsh, Roger Trangsrud.

Jay Tidmarsh

Offers concepts of and insights into the forms and functions of complex litigation issues, including their implications. Helps students in such courses to review and study, as well as serves as a reference book for students once they are in practice.

Mass Tort Settlement Class Actions, Jay Tidmarsh

Jay Tidmarsh

No abstract provided.

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 …

Exiting Litigation, Jay Tidmarsh

Jay Tidmarsh

No abstract provided.

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 is the issue of agency cost, in which the agents of 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 Essay develops an idea that, in conjunction with reforms in fee structure and opt-out rights, controls agency costs at …

Resurrecting Trial By Statistics, Jay Tidmarsh

Jay Tidmarsh

“Trial by statistics” was one means by which a court could resolve a large number of aggregated claims: a court could try a random sample of claim, and extrapolate the average result to the remainder. In Wal-Mart, Inc. v. Dukes, the Supreme Court seemingly ended the practice at the federal level, thus removing from judges a tool that made mass aggregation more feasible.

After examining the benefits and drawbacks of trial by statistics, this Article suggests an alternative that harnesses many of the positive features of the technique while avoiding its major difficulties. The technique is the “presumptive judgment”: …

Living In Cafa's World, Jay Tidmarsh

Jay Tidmarsh

This Article, prepared for a conference on the Class Action Fairness Act, examines the effect of CAFA on our understanding about the benefits and drawbacks of class actions. The Article describes the vision of class actions that imbues CAFA, and demonstrates how many subsequent developments in the law of class actions — including the Supreme Court’s decisions in Wal-Mart v. Dukes, AT&T Mobility v. Concepcion, and Shady Grove Orthopedics v. Allstate Insurance — have advanced CAFA’s restrictive vision about the role of class actions in modern American litigation. The Article demonstrates that competing visions about the role of class actions …

Unattainable Justice: The Form Of Complex Litigation And The Limits Of Judicial Power, Jay Tidmarsh

Jay Tidmarsh

No abstract provided.

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 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 achieve net social gains. This idea of “superiority” presents some …