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Full-Text Articles in Law
Built For Business: The Commercial Need For Aggregate Litigation, Jack Zarin-Rosenfeld
Built For Business: The Commercial Need For Aggregate Litigation, Jack Zarin-Rosenfeld
Connecticut Law Review
Commercial actors long have argued that class actions are bad for business. But for even longer, business groups have supported other types of aggregate litigation that closely resemble class actions, such as expansive federal bankruptcy. While critics have successfully limited national aggregation via class actions, they have not even attempted to criticize aggregation via bankruptcy.
Why have business groups attacked aggregate litigation in some cases and supported it in others? This Article provides an answer by examining aggregation’s origins and development, and what emerges, it turns out, is very much the opposite of what aggregation’s pro-business critics would have us …
Interagency Litigation Outside Article Iii, Adam Crews
Interagency Litigation Outside Article Iii, Adam Crews
Connecticut Law Review
For over seventy years, the Supreme Court has said that a justiciable controversy can exist when one agency in the federal executive branch sues another. Although this raises intuitive concerns under both Article II (relating to presidential control) and Article III (relating to standing), scholars and judges have paid scant attention to the constitutional foundation for interagency litigation. Of those who have explored the topic, defenders and opponents alike agree on one thing: the foundation—or lack of one—depends on Article III’s case-or-controversy requirement.
That is mistaken. A better approach to understand interagency litigation is to step outside Article III and …
Different Bells For Different Wethers: Random Sampling And Other Bellwether Selection Trends In Products Liability Mdls, Felipe Villalón
Different Bells For Different Wethers: Random Sampling And Other Bellwether Selection Trends In Products Liability Mdls, Felipe Villalón
Connecticut Law Review
When the Judicial Panel on Multidistrict Litigation (JPML) transfers pools of thousands of similar cases pending in different districts to a single district court pursuant to 28 U.S.C. § 1407, the transferee judge needs a speedy and effective means of resolving these multidistrict litigations, or MDLs. Some MDLs, especially those involving products liability claims, are enormous, consisting of tens of thousands or even hundreds of thousands of claims. The MDL statute, however, limits the transferee court’s power to pretrial proceedings. Judges managing MDLs will promote settlement by fast-tracking several cases for trial, either in their own district (if they have …
The Curious Incident Of The Falling Win Rate: Individual Vs System-Level Justification And The Rule Of Law, Peter Siegelman, Alexandra Lahav
The Curious Incident Of The Falling Win Rate: Individual Vs System-Level Justification And The Rule Of Law, Peter Siegelman, Alexandra Lahav
Faculty Articles and Papers
For forty quarters starting in 1985, the plaintiff win rate in adjudicated civil cases in federal courts fell almost continuously, from 70% to 30%, where it remained - albeit with increased volatility - for the next twenty years. This Essay explores the reasons for this decline and the need for systemic explanations for the phenomenon. Approximately 60% of the fall could be attributable to the changing makeup of the federal docket, but that leaves 40% of the fall (that is, a win rate decline of 14 percentage points over a ten year period) unaccounted for. We show that the most …
Affordable Care Act, Remedy, And Litigation Reform, The, Brendan Maher
Affordable Care Act, Remedy, And Litigation Reform, The, Brendan Maher
Faculty Articles and Papers
The Patient Protection and Affordable Care Act of 2010 (“ACA”) rewrote the law of private health insurance. How the ACA rewrote the law of civil remedies, however, is — to date — a question largely unexamined by scholars. Courts everywhere, including the United States Supreme Court, will soon confront this important issue. This Article offers a foundational treatment of the ACA on remedy. It predicts a series of flashpoints over which litigation reform battles will be fought. It identifies several themes that will animate those conflicts and trigger others. It explains how judicial construction of the statute’s functional predecessor, the …
Class Action In The Age Of Twitter: A Dispute Systems Approach, Jeremy Mcclane
Class Action In The Age Of Twitter: A Dispute Systems Approach, Jeremy Mcclane
Faculty Articles and Papers
No abstract provided.
Due Process And The Future Of Class Actions, Alexandra Lahav
Due Process And The Future Of Class Actions, Alexandra Lahav
Faculty Articles and Papers
No abstract provided.
Symmetry And Class Action Litigation, Alexandra Lahav
Symmetry And Class Action Litigation, Alexandra Lahav
Faculty Articles and Papers
In ordinary litigation, parties often have different resources to devote to their lawsuit. This is a problem because the adversarial system is predicated on two (or more) parties, equal and opposite one another, making their best arguments to a neutral judge. The class action is a procedural device that aims to equalize resources between individual plaintiffs and organizational defendants by allowing plaintiffs to pool their claims. Current developments of class action doctrine, however, reinforce in the courtroom the asymmetry that exists between individual plaintiffs and organizational defendants outside the court. This Article explores these trends and the questions they raise. …
Underclaiming And Overclaiming, Peter Siegelman, Sachin Pandya
Underclaiming And Overclaiming, Peter Siegelman, Sachin Pandya
Faculty Articles and Papers
Arguments that we have too much litigation (overclaiming) or too little (underclaiming) cannot be valid without estimating how many of the undecided claims that are brought (actual claims) or not brought (potential claims) have or lack legal merit. We identify the basic conceptual structure of such underclaiming and overclaiming arguments, which entails inferences about the distribution of actual or potential claims by their probability of success on the merits within a claims-processing institution. We then survey the available methods for estimating claim merit.
The Case For Trial By Formula, Alexandra Lahav
The Case For Trial By Formula, Alexandra Lahav
Faculty Articles and Papers
The civil justice system tolerates inconsistent outcomes in cases brought by similarly situated litigants. One reason for this is that in cases such as Wal-Mart v. Dukes, the Supreme Court has increasingly emphasized liberty over equality. The litigants’ right to a “day in court” has overshadowed their right to equal treatment. However, an emerging jurisprudence at the district court level is asserting the importance of what this Article calls “outcome equality” – equal results reached in similar cases. Taking the example of mass torts litigation, this Article explains how innovative procedures such as sampling are a solution to the problem …
Civil Judicial Subsidy, The, Brendan Maher
Civil Judicial Subsidy, The, Brendan Maher
Faculty Articles and Papers
American society does not require civil litigants to bear the actual cost of using the court; those costs are borne almost entirely by the taxpayer (i.e., the “civil judicial subsidy”). In this Article I ask: is that right? Or is there a more desirable way to apportion court usage costs between the state and litigants? I develop an evaluative framework that facilitates analysis of the purpose, contours, and cost of the current judicial subsidy. We subsidize court use because, in theory, there are certain “social positives” associated with public adjudication. To date the unspoken assumption has been that these social …
Developments In Connecticut Criminal Law: 2008, Timothy Everett
Developments In Connecticut Criminal Law: 2008, Timothy Everett
Faculty Articles and Papers
No abstract provided.
Developments In Connecticut Criminal Law: 2007, Timothy Everett
Developments In Connecticut Criminal Law: 2007, Timothy Everett
Faculty Articles and Papers
No abstract provided.
Dealing Fairly With Estate And Trust Beneficiary Complaints, Robert Whitman
Dealing Fairly With Estate And Trust Beneficiary Complaints, Robert Whitman
Faculty Articles and Papers
No abstract provided.
Bellwether Trials, Alexandra Lahav
Bellwether Trials, Alexandra Lahav
Faculty Articles and Papers
At the core of the controversy over mass torts lies a fundamental question: what justifies collective litigation? Scholars considering this question make one of two arguments. They either argue that collective justice must be limited by a process-based right to participation based on autonomy values, or they argue that collective justice is justified by utilitarian values and dismiss participation altogether. This Article presents a third alternative: that the democratic nature of the jury trial validates group typical justice, a subset of collective justice. The Article re-envisions the trial as a democratic enterprise, rather than solely an atomistic one. An innovative …
Developments In Connecticut Criminal Law: 2006, Timothy Everett
Developments In Connecticut Criminal Law: 2006, Timothy Everett
Faculty Articles and Papers
No abstract provided.
Developments In Connecticut Criminal Law: 2005, Timothy Everett
Developments In Connecticut Criminal Law: 2005, Timothy Everett
Faculty Articles and Papers
No abstract provided.
Fundamental Principles For Class Action Governance, Alexandra Lahav
Fundamental Principles For Class Action Governance, Alexandra Lahav
Faculty Articles and Papers
Class actions face a crisis of governance. The form of governance provided by Rule 23, governance by representative parties, is both vague in theory and ignored in practice. Instead, by a combination of procedural rules, judicial interpretation and common practice, the class is governed by a regime of attorney dictatorship with limited judicial oversight. This regime neither reflects the basic insight that the class and attorney do not have a traditional attorney-client relationship nor performs the task of transforming the inchoate collectivity of the class into an organization that protects and is responsive to the will of class members. This …
Images Of The Woman Juror, Carol Weisbrod
Images Of The Woman Juror, Carol Weisbrod
Faculty Articles and Papers
No abstract provided.