Law Commons^™

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

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

Elizabeth Chamblee Burch

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

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

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

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

Elizabeth Chamblee Burch

Prospective Remedies In Constitutional Adjudication, Doug R. Rendleman

Doug Rendleman

No abstract provided.

A Company’S Voluntary Refund Program For Consumers Can Be A Fair And Efficient Alternative To A Class Action, Eric P. Voigt

Eric P. Voigt

Consumer product companies are establishing internal programs where they are voluntarily compensating consumers for damages caused by their products. When a company implements a refund program in response to a threatened or pending class action, may federal courts rely solely on the voluntary refunds in denying class certification? The short answer is yes.

This Article analyzes Rule 23(b)(3) of the Federal Rules of Civil Procedure and the requirement that a class action be "superior to other available methods for fairly and efficiently adjudicating the controversy." The Article argues that courts must compare the superiority of a class action not only …

Class Actions, Heightened Commonality, And Declining Access To Justice, A. Benjamin Spencer

A. Benjamin Spencer

A prerequisite to being certified as a class under Rule 23 of the Federal Rules of Civil Procedure is that there are “questions of law or fact common to the class.” Although this “commonality” requirement had heretofore been regarded as something that was easily satisfied, in Wal-Mart Stores, Inc. v. Dukes the Supreme Court gave it new vitality by reading into it an obligation to identify among the class a common injury and common questions that are “central” to the dispute. Not only is such a reading of Rule 23’s commonality requirement unsupported by the text of the rule, but …

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

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 …

Of Dinosaurs And Birds: The Second Circuit’S “Forum Rule” As An Unwarranted Attack On Plaintiffs’ Employment Discrimination Class Action Attorneys’ Fee Petitions, Patrick F. Madden, Shanon J. Carson

Patrick F. Madden

No abstract provided.

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

Mark Moller

Premature Burial? The Resuscitation Of Public Nuisance Litigation, Richard Faulk, John Gray

Richard Faulk

On Sept. 22, the U.S. Court of Appeals for the Second Circuit, in Connecticut v. American Electric Power Co., held that federal common-law nuisance suits can proceed against major greenhouse gas emitters. Nine days later, a federal trial court reached the opposite conclusion in another case. In this article, attorneys Richard Faulk and John Gray discuss these rulings, and the revival of public nuisance litigation.

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

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

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.

Reunion In Salem: Updating The Mtbe Controversy, Richard O. Faulk

Richard Faulk

Concerned about groundwater contamination and the potential health effects of methyl tertiary butyl ether (MTBE), a gasoline additive used to curtail air pollution, several states have banned its use. Similarly, MTBE hus been the subject ofa great deal of litigation. And while the Energy Policy Act of 2005 did not ban MTBE outright, it eliminated the federal oxygenate requirement for gasoline, thereby making the additive unnecessary. But according to RichardFaulk and./ohrr Gray, the controversy surrounding MTBE is greatly exaggerated. Moreover, MTBE represents only about 11% of the dangerous chemicals in gasoline that leak from USE into groundwater. Banning MTBE and …

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

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 …

Armageddon Through Aggregation: The Use And Abuse Of Class Actions In International Dispute Resolution, Richard O. Faulk

Richard Faulk

A troubling and dangerous phenomenon has emerged onto the international litigation landscape. The system of justice understood and appreciated by citizens in most democratic states — one which guarantees individual plaintiffs and defendants their “day in court” — is increasingly being sidestepped by procedural rules that allow entrepreneurial lawyers to aggregate claims into massive controversies that are, for all practical purposes, untriable. Although these enormous cases arise in varying formats, they share a single intimidating characteristic: the designed imposition of enormous and intolerable risks which defendants cannot prudently accept by insisting on their “day in court” in a jury trial. …

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.

Building A Better Mousetrap: A New Approach To Trying Mass Tort Cases, Richard O. Faulk

Richard Faulk

For many years, both state and federal courts have struggled with the extraordinarily difficult problems raised by mass tort litigation. In an effort to resolve these controversies, the courts have resorted to increasingly creative procedures -- with mixed results. Courts have tried class certification in various forms, consolidation on a "controversy by controversy" basis or on the basis of "common issues," and bellwether trials with smaller groups of plaintiffs selected by varying procedures. These creative techniques have been employed in the interest of achieving results and ending the controversies expeditiously. Unfortunately, in pursuing those goals, each technique has collided, in …

An Historical Analysis Of The Binding Effect Of Class Suits, Geoffrey C. Hazard, John L. Gedid, Stephen Sowle

John L. Gedid

No abstract provided.

Determining Trial Type In Complex Toxic Tort And Environmental Cases, Richard Faulk

Richard Faulk

Generally, there are four trial options available for dealing with complex multi-party cases, although they can be blended or combined in a number of ways. They include: a conventional plenary trial for all plaintiffs and all defendants on all issues; one or more separate trials on issues, such as limitations or causation; "pilot" or "bellwether" trials for selected plaintiffs against all defendants on all issues; and class actions where the claims of class representatives are tried in a plenary fashion. This article examines these options and their relative benefits and disadvantages.