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Articles 1 - 20 of 20
Full-Text Articles in Law
Optimal Class Size, Opt-Out Rights, And "Indivisible" Remedies, Jay Tidmarsh, David Betson
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, …
Jack B. Weinstein: Judicial Entrepreneur, Jeffrey B. Morris
Jack B. Weinstein: Judicial Entrepreneur, Jeffrey B. Morris
Jeffrey B. Morris
The University of Miami Law Review's 2014 Symposium, Leading from Below, honored Judge Jack B. Weinstein for his extraordinary career as a private practitioner, government lawyer, advisor to legislators and executive officials, major legal scholar, and federal district judge for over forty-seven years. It also offered the possibility of pausing for several days to consider the significance of the federal district courts more generally.This article is intended to look at the career of one very well regarded judge through spectacles that offer a different vantage point on a judicial career. Those spectacles-the concept of judicial entrepreneurship-seem to be particularly apt …
Constructing Issue Classes, Elizabeth Chamblee Burch
Constructing Issue Classes, Elizabeth Chamblee Burch
Elizabeth Chamblee Burch
Acciones Colectivas Vs Cláusula De Arbitraje, Jorge E. De Hoyos Walther
Acciones Colectivas Vs Cláusula De Arbitraje, Jorge E. De Hoyos Walther
Jorge E De Hoyos Walther
Análisis de la resolución de la Suprema Corte de Justicia que permite la procedencia una accione colectiva, aun cuando las partes se hayan sometido al arbitraje.
Class Actions Suits Vs. Arbitration Clause (Mexico), Jorge E. De Hoyos Walther
Class Actions Suits Vs. Arbitration Clause (Mexico), Jorge E. De Hoyos Walther
Jorge E De Hoyos Walther
On September 24, 2014, the Mexican Supreme Court (SCJN) issued a landmark decision in the world of arbitration and class action suits. In summary, SCJN upheld that it is possible to file a class action suit, even though an arbitration clause is included in the agreement that governs the business relationship
Daños Punitivos En Mexico. Renacimiento De La Responsabilidad Civil, Jorge E. De Hoyos Walther
Daños Punitivos En Mexico. Renacimiento De La Responsabilidad Civil, Jorge E. De Hoyos Walther
Jorge E De Hoyos Walther
La Suprema Corte de Justicia reconoce la existencia de los daños punitivos en México. Esta resolución tendrá un impacto importante en las demandas por responsabilidad civil y en los litigios transfronterizos.
Punitive Damages In Mexico, Jorge E. De Hoyos Walther
Punitive Damages In Mexico, Jorge E. De Hoyos Walther
Jorge E De Hoyos Walther
In July 2014 several Court precedents were published, through which the existence of “Punitive Damages” in Mexico was recognized. This resolution will change the way in which civil liability is perceived in our country, and will have implications for individuals and companies doing business overseas.
Adequately Representing Groups, Elizabeth Chamblee Burch
Adequately Representing Groups, Elizabeth Chamblee Burch
Elizabeth Chamblee Burch
Prospective Remedies In Constitutional Adjudication, Doug R. Rendleman
Prospective Remedies In Constitutional Adjudication, Doug R. Rendleman
Doug Rendleman
No abstract provided.
Class Action In Mexico, Jorge E. De Hoyos Walther
Class Action In Mexico, Jorge E. De Hoyos Walther
Jorge E De Hoyos Walther
In April 2011 the Mexican Parliament approved a legislative package that regulates class actions. The amended laws are six: (1) Federal Code of Civil Proceedings; (2) Federal Civil Code; (3) Federal Law of Economic Competence; (4) Federal Law of Consumer’s Protection; (4) Organic Law of the Federal Judicial Power; (5) General Law of Ecological Equilibrium and Environmental Protection; and (6) Law of Protection to the User of Financial Services. On August 30th 2011, the Federal Official Gazette published this amendment to the federal law.
The Curse Of Bigness And The Optimal Size Of Class Actions, Alexandra Lahav
The Curse Of Bigness And The Optimal Size Of Class Actions, Alexandra Lahav
Alexandra D. Lahav
How big is too big when it comes to class actions? This short essay, written for the Vanderbilt Law Review En Banc roundtable on Dukes v. Wal-Mart Stores, Inc. examines that question. Size in itself should not be a barrier to certification, but courts may rightly be concerned with variation within the class. Variation causes manageability problems, but in some cases (like Dukes) variation can be managed within the class context by judicious use of statistical methods. I also demonstrate why the related argument that this class ought not be certified because it is too big and Wal-Mart will be …
Procedural Adequacy, Elizabeth Chamblee Burch
Procedural Adequacy, Elizabeth Chamblee Burch
Elizabeth Chamblee Burch
This short piece responds to Jay Tidmarsh’s article, Rethinking Adequacy of Representation, 87 Texas Law Review 1137 (2009). I explore Professor Tidmarsh’s proposed “do no harm” approach to adequate representation in class actions from a procedural legitimacy perspective. I begin by considering the assumption underlying his alternative, namely that in any given class action both attorneys and class representatives tend to act as self-interested homo economicus and we must therefore tailor the adequacy requirement to curb self-interest only in so far as it makes class members worse off than they would be with individual litigation. Adopting the “do no harm” …
A New Look At The Original Meaning Of The Diversity Clause, Mark K. Moller
A New Look At The Original Meaning Of The Diversity Clause, Mark K. Moller
Mark Moller
The Expanding Use Of The Alien Tort Statute In International Human Rights Enforcement, Richard O. Faulk
The Expanding Use Of The Alien Tort Statute In International Human Rights Enforcement, Richard O. Faulk
Richard Faulk
This article examines the historical foundations of the ATS, the complexities of its recent interpretations. It then weighs the utility of the Act as a means for enforcing international human rights in the courts, and examines the risks posed by current trends to those who increasingly pursue international business opportunities. As will be seen, the boundaries of the ATS are inadequately defined, and there are dangerous opportunities for common law mischief and abuse. Precautions are obviously necessary, and the trend toward internationalism in United States jurisprudence suggests that even greater risks lie ahead.
Cafa's Impact On Litigation As A Public Good, Elizabeth Chamblee Burch
Cafa's Impact On Litigation As A Public Good, Elizabeth Chamblee Burch
Elizabeth Chamblee Burch
Class actions regulate when government fails. Perhaps this use as an ex post remedy when ex ante regulation founders explains the fervor and rhetoric surrounding Rule 23’s political life. In truth, the class action does more than aggregate; it augments government policing and generates external societal benefits. These societal benefits – “externalities” – are the spillover effects from facilitating small claims litigation. In federalizing class actions through the Class Action Fairness Act (CAFA), Congress, in some ways, impeded class action practice, thereby negating its positive externalities and inhibiting backdoor regulation. This Article critically considers those effects on the common good. …
The Law And Large Numbers: Preserving Adjudication In Complex Litigation, Alexandra Lahav
The Law And Large Numbers: Preserving Adjudication In Complex Litigation, Alexandra Lahav
Alexandra D. Lahav
This Article describes how the power to regulate tortfeasors has been transferred from the courts to private parties. It situates court resistance to administrative resolution of mass torts in the historical debate over bureaucracy in government. Instead of privatizing mass tort settlements, courts should take an active role in administering the resolution of mass torts.
Unsettling Efficiency: When Non-Class Aggregation Of Mass Torts Creates Second-Class Settlements, Elizabeth Chamblee Burch
Unsettling Efficiency: When Non-Class Aggregation Of Mass Torts Creates Second-Class Settlements, Elizabeth Chamblee Burch
Elizabeth Chamblee Burch
Abstract: The potential for attorneys to collude in reaching a settlement agreement arises in any large-scale aggregation of mass torts. In the 1990s, attorneys settled seventy-four percent of the mass tort cases consolidated for transfer by the Judicial Panel on Multidistrict Litigation. Even though most mass tort litigation settles, the judicial system ensures the fairness and integrity of settlements only in the bankruptcy and class action contexts. Consequently, the fairness of the settlement can vary depending on how the judicial system aggregates the claims. Only thirty-nine percent of aggregated claims resulted in class action settlements. Two percent received bankruptcy protections. …
Between "Merit Inquiry" And "Rigorous Analysis": Using Daubert To Navigate The Gray Areas Of Federal Class Action Certification, Elizabeth C. Burch
Between "Merit Inquiry" And "Rigorous Analysis": Using Daubert To Navigate The Gray Areas Of Federal Class Action Certification, Elizabeth C. Burch
Elizabeth Chamblee Burch
In recent years, the class action certification hearing has become the latest forum for disputes over the reliability of expert testimony. Since these hearings may involve complex technical matters, litigants frequently try to introduce expert testimony to either establish or challenge the basic requirements for class certification. Yet, most courts do not conduct a Daubert analysis before admitting expert testimony during certification, evaluate the evidence according to a uniform standard, or adequately weigh opposing expert opinions. Even though the Federal Rules of Evidence codify procedures to ensure the reliability of expert testimony, courts have been reluctant to employ them during …
An Historical Analysis Of The Binding Effect Of Class Suits (Co-Authored With G. Hazard Jr. & J. Gedid), Stephen D. Sowle
An Historical Analysis Of The Binding Effect Of Class Suits (Co-Authored With G. Hazard Jr. & J. Gedid), Stephen D. Sowle
Stephen D. Sowle
No abstract provided.
An Historical Analysis Of The Binding Effect Of Class Suits, Geoffrey C. Hazard, John L. Gedid, Stephen Sowle
An Historical Analysis Of The Binding Effect Of Class Suits, Geoffrey C. Hazard, John L. Gedid, Stephen Sowle
John L. Gedid
No abstract provided.