Class Certification and the Substantive Merits

The United States Supreme Court, in its 1974 decision, Eisen v. Carlisle & Jacquelin, held that judges should not conduct a preliminary inquiry into the merits of a suit as part of the decision whether to certify a class. The federal courts have struggled ever since to honor Eisen\u27s bar while still conducting a credible certification analysis-a task complicated by the fact that merits-related factors are often relevant to Rule 23 requirements. The result is a muddled body of case law in which courts tend to certify generously and avoid inquiring into the merits of substantive issues even when those issues are crucial to the certification analysis. This approach creates high social costs by inviting frivolous and weak class action suits. This Article argues that the Eisen rule should be abolished. Trial judges should assess competing evidence, not just allegations, and should evaluate case strength whenever the specific requirements of Rule 23 call for an inquiry into merits-related factors. For example, a party relying on a substantive issue to show commonality or predominance should have to demonstrate a likelihood of success on the issue. The Article also goes further and recommends that judges always conduct a preliminary inquiry into the merits before certifying a class, regardless of whether merits-related factors are directly relevant to a specific requirement of Rule 23. The Article first reviews the history of the Eisen rule and surveys the current state of the law, before turning to a policy analysis of the rule\u27s effects. The policy discussion criticizes the traditional arguments and then offers a systematic evaluation of error and process costs. Error costs must be evaluated in light of the extremely high probability of postcertification settlement. Eisen\u27s liberal approach creates a substantial risk of erroneous certification grants that cannot be corrected later when a case settles. This risk coupled with the high likelihood of settlement invites frivolous and weak class action suits. The result is a serious error-cost problem with regard to certification. At the same time, requiring a merits review at the certification stage increases the risk of erroneous certification denials. But for several reasons this risk is not likely to increase dramatically, and the associated costs are not likely to be large. The net result therefore supports a merits inquiry, and this conclusion remains valid even after process costs are added to the policy mix

Statistical Adjudication: Rights, Justice, and Utility in a World of Process Scarcity

The institution of adjudication is in a state of great upheaval to- day. Mounting case backlogs and the litigation challenge posed by mass torts are pressuring Congress and courts to experiment with novel adjudication techniques. Some of the results are well-known-case tracking, alternative dispute resolution, greater reliance on settlement, and tighter pretrial screening of cases. Taken together, these changes fore- shadow a major transformation in the practice and theory of adjudication. This Article focuses on one particularly remarkable proposal for handling large-scale litigation: adjudication by sampling. This approach uses statistical methods to adjudicate a large population of similarly situated cases. Rather than decide each individual case separately, the court aggregates all the cases and selects a random sample. The court then adjudicates each sample case and statistically combines the sample outcomes to yield results for all cases in the larger population. The sampling procedure is nicely illustrated by the most recent chapter in Judge Robert Parker\u27s struggle with asbestos litigation, Cimino v. Raymark Industries, Inc. After certifying a class action and adjudicating liability, Judge Parker faced the daunting prospect of 2298 hotly contested damage trials. Settlement negotiations had broken down, and defendants made credible threats to contest each case vigorously.\u27 Judge Parker worried about the consequences in Cimino as well as in the thousands of pending and future cases that would have to be tried individually at the damages stage unless some aggregative procedure could be devised

Judging as Judgment: Tying Judicial Education to Adjudication Theory

The thesis of this Article, simply stated, is that judicial education makes sense only against the backdrop of general ideas and beliefs about law, courts, and adjudication. These ideas and beliefs motivate a focus on educating judges and help guide more specific pedagogical choices. I explore this broad thesis from both a historical and a normative perspective. Historically, I argue that interest in judicial education caught fire in the 1960s in large part because of prevailing beliefs about law and the proper function of courts. Normatively, I argue that the connection between judicial education and normative views of courts and adjudication continues to be important today, although in a different way. Judicial education has a vital role to play in engaging and testing different views of civil adjudication and its proper function. In particular, in-person, face-to-face instruction is valuable as a way for judges to reflect critically on principles that underlie American adjudication and to work out a shared conception of the institution that fits the core elements of litigation practice

Revisiting the Policy Case for Supplemental Jurisdiction

Symposium: A Reappraisal of the Supplemental-Jurisdiction Statute: Title 28 U.S.C. § 1367

Plausibility Pleading Revisited and Revised: A Comment on Ashcroft v. Iqbal

This Article critically examines the Supreme Court\u27s most recent decision on Rule 8(a)(2) pleading standards, Ashcroft v. Iqbal, decided in May 2009. The Article supplements and extends the analysis in my recent article, Twombly, Pleading Rules, and the Regulation of Court Access, which examined the Supreme Court\u27s seminal Bell Atlantic Corp. v. Twombly decision and evaluated the costs and benefits of screening meritless suits at the pleading stage. In this Article, I argue that Iqbal does much more than clarify and reinforce key points in Twombly;it takes Twombly\u27s plausibility standard in a new and ultimately ill-advised direction. My criticism has two parts. First, Iqbal adopts a “two-pronged approach” that filters legal conclusions in the first prong before applying the plausibility standard to factual allegations in the second. I argue that this two-pronged approach is incoherent. There is only one prong: the judge must determine whether the complaint, interpreted as a coherent whole, plausibly supports each element of the legal claim. The second problem with Iqbal runs deeper. Iqbal screens lawsuits more aggressively than Twombly, and does so without adequate consideration of the policy stakes. In particular, Iqbal applies a thick screening model that aims to screen weak as well as meritless suits, whereas Twombly applies a thin screening model that aims to screen only truly meritless suits. The thick screening model is highly problematic on policy grounds, even in cases like Iqbal that involve qualified immunity. Moreover, the Supreme Court is not institutionally well equipped to decide whether strict pleading is desirable, especially when it implements a thick screening model. Those decisions should be made through the formal Rules Enabling Act process or by Congress