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Articles 1 - 9 of 9
Full-Text Articles in Law
Auctioning Class Settlements, Jay Tidmarsh
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 occurs when the agents for 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 Article develops a proposal that, in conjunction with reforms in fee structure and opt-out rights, controls agency costs at the time of settlement. The idea …
Reforming Property Law To Address Devastating Land Loss, Thomas W. Mitchell
Reforming Property Law To Address Devastating Land Loss, Thomas W. Mitchell
Faculty Scholarship
Tenancy-in-common ownership represents the most widespread form of common ownership of real property in the United States. Such ownership under the default rules also represents the most unstable ownership of real property in this country. Thousands of tenancy-in-common property owners, including members of many poor and minority families, have lost their commonly-owned property due to court-ordered, forced partition sales as well as much of their real estate wealth associated with such ownership as a result of such sales. Though some scholars and the media have highlighted how thousands of African-Americans have lost an untold amount of property and substantial real …
Cy Pres And The Optimal Class Action, Jay Tidmarsh
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 …
Idea Class Actions After Wal-Mart V. Dukes, Mark C. Weber
Idea Class Actions After Wal-Mart V. Dukes, Mark C. Weber
Mark C. Weber
Wal-Mart v. Dukes overturned the certification of a class of a million and a half female employees alleging sex discrimination in Wal-Mart’s salary and promotion decisions. The Supreme Court ruled that the case did not satisfy the requirement that a class have a common question of law or fact, and said that the remedy sought was not the type of relief available under the portion of the class action rule permitting mandatory class actions. Over the last two years, courts have struggled with how to apply the ruling, especially how to apply it beyond its immediate context of employment discrimination …
Trans-Substantivity Beyond Procedure, Suzette M. Malveaux
Trans-Substantivity Beyond Procedure, Suzette M. Malveaux
Publications
No abstract provided.
Litigation Reform: An Institutional Approach, Stephen B. Burbank, Sean Farhang
Litigation Reform: An Institutional Approach, Stephen B. Burbank, Sean Farhang
All Faculty Scholarship
The program of regulation through private litigation that Democratic Congresses purposefully created starting in the late 1960s soon met opposition emanating primarily from the Republican party. In the long campaign for retrenchment that began in the Reagan administration, consequential reform proved difficult and ultimately failed in Congress. Litigation reformers turned to the courts and, in marked contrast to their legislative failure, were well-rewarded, achieving growing rates of voting support from an increasingly conservative Supreme Court on issues curtailing private enforcement under individual statutes. We also demonstrate that the judiciary’s control of procedure has been central to the campaign to retrench …
Retroactivity And Prospectivity Of Judgments In American Law, Richard Kay
Retroactivity And Prospectivity Of Judgments In American Law, Richard Kay
Richard Kay
In every American jurisdiction, new rules of law announced by a court are presumed to have retrospective effect—that is, they are presumed to apply to events occurring before the date of judgment. There are, however, exceptions in certain cases where a court believes that such application of the new rule will upset serious and reasonable reliance on the prior state of the law. This essay, a substantially abridged version of the United States Report on the subject, submitted at the Nineteenth International Congress of Comparative Law, summarizes these exceptional cases. It shows that the proper occasions for issuing exclusively or …
The Practice And Theory Of Lawyer Disqualification, Keith Swisher
The Practice And Theory Of Lawyer Disqualification, Keith Swisher
Keith Swisher
Lawyer disqualification is commonly feared — as a “strategic,” “tactical,” and “harassing” “potent weapon” depriving clients of their trusted counsel of choice. Although disqualification comes with costs, fundamental misunderstandings fuel this common fear. This Article finds that disqualification is a uniquely effective remedy for lawyer misconduct and makes the following contributions to the law and practice of lawyer disqualification: (1) an exhaustive study surveying disqualification cases and refuting the common misconception that disqualification motions are uncontrollably on the rise and uncontrollably bad; (2) an accessible analysis of lawyer disqualification doctrine that permits lawyers and judges to begin assessing common disqualification …
Party Subordinance In Federal Litigation, Scott Dodson
Party Subordinance In Federal Litigation, Scott Dodson
Scott Dodson
American civil litigation in federal courts operates under a presumption of party dominance. Parties choose the lawsuit structure, factual predicates, and legal arguments, and the court accepts these choices. Further, parties enter ubiquitous ex ante agreements that purport to alter the law governing their dispute, along with a chorus of calls for even more party-driven customization of litigation. The assumption behind this model of party dominance is that parties substantially control both the law that will govern their dispute and the judges that oversee it. This Article challenges that assumption by offering a reoriented model of party subordinance. Under my …