Class Action Advice in the Form of Questions

Based upon perspectives and concepts from social and historical research on technical systems, this dissertation describes and analyses events and processes relating to the dramatic change in television in Western Europe during the 1980s and early 1990s. In particular, it focuses on how Swedish television, conceived as a large socio-tecnical system, has shifted from a traditional 'public service' system to a more open and mixed system. In addition to traditional public television broadcasting, it has now come to encompass several commercial channels distributed through an expanding combination of technical and market alternatives, including satellite television. The study traces the multiple ways in which socio-historical processes and contingencies have shaped the television system in Sweden. The most detailed historical descriptions and analyses focus on the entrepreneurial activities of the Swedish firm, Industriförvaltning AB Kinnevik, documenting the introduction of the satellite channel TV3 in Sweden and the related expansion of the system. The entrepreneurial actions of Kinnevik in establishing the new satellite channel TV3 are analysed against the background of (1) the characteristics of the traditional Swedish radio and TV broadcasting system, (2) the development of cable television in Sweden, and (3) the broad history of satellite television. Emphasis is placed on how and why it was possible for a new actor to successfully challenge, gain access to, and help transform a well-established system that had remained relatively stable for a long time. This raises attendant questions of timing. How do we account for and explain the relative stability of this system for such a long period? Why did radical change occur at a particular time and not before or after? Whereas the empirical material concerning the activities of Kinnevik in relation to its entrance on the television market covers the period between 1984 and 1991, the study in general addresses developments throughout the twentieth century and, occasionally, even further back in history. The focus is thus on the system as a whole, rather than on only one of its components. A number of conclusions are drawn from the study concerning both the construction of new systems and the reconstruction of established systems. Two major conclusions can be mentioned here. (1) First, the historical material confirms the necessity of collective action in large-scale technology-based entrepreneurial action. (2) Second, the study also shows that there is nothing necessary or inevitable about the development of technologies/technological systems, even though they are subject to a high degree of path-dependence.The electronic version of the printed dissertation is a corrected version where all spelling and grammatical errors are corrected.</p

Class Action Advice in the Form of Questions

The opportunity to offer advice to those who are considering the adoption or modification of class or group action procedures for other legal systems is both welcome and distracting. It is welcome because it forces a change of perspective in the attempt to contemplate adaptation of United States practice to different cultures, political structures, substantive laws, and courts with dissimilar surrounding procedures. It is distracting because there are so many different levels of possible comparison that the choice of perspective must be tailored to the immediate occasion. It is tempting to take on the most important sets of questions-for example, to ask if non-governmental individuals, organizations, or lawyers should replace individual litigants in larger scale litigation so as to facilitate efficiency or remedy wrongs that otherwise would go unredressed. These questions can be addressed only within the framework of a particular society and its political and governmental structures. There is little point in attempting to provide answers good for all settings. At the other end, however, there is no point in attempting to address matters of minute detail. A more suitable middle ground can be found in a series of questions raised by more than eight years of witnessing the work of the Advisory Committee on the Federal Rules of Civil Procedure as it has grappled with possible revisions of Civil Rule 23. These questions are more helpful than even provisional answers would be-the questions are much the same for most systems, while the answers often will be different

Timing as Jurisdiction: Federal Civil Appeals in Context

The purpose of these few pages is to show that the calculus of appeal timing is inherently complex. If we are to continue the effort to capture the calculus in rules, the rules will be correspondingly complex. The complex rules will have some virtues; nonetheless, the rules also are likely to generate misunderstanding and may tend to produce undesirable results. It is very tempting to replace the rules with a flexible system that relies largely on discretion to determine the occasions for appeal before a truly final judgment. Whether a flexible system has now become appropriate depends on the same institutional factors that make the calculus so complex. The best answer may be to adopt the framework for discretionary interlocutory appeals without yet abolishing present rules. As the discretionary system becomes more familiar, it should prove possible to discard many of the present rules in a gradual process of attrition

Class Action Rule Changes: A Midpoint Report

This a midpoint progress report of the Reporter on current proposals to amend the class action rule, Rule 23 of the Federal Rules of Civil Procedure. In part, it is one of many calls for help. The proposed amendments have been published for comment. It is important that the rulemakers hear from as many interested observers as possible. One of the pitfalls of the comment process - at least one of the pitfalls that the rulemakers like to believe in - is that there are many observers who believe that the rulemakers have got it right, and do not need to be told that they have got it right. The record of comments may make proposals seem more controversial, or less well advised, than they are. And in other part, this report is an illustration of the care that is taken in the largely invisible process that continually reviews, and periodically amends, the rules

Rewriting Shutts for Fun, Not to Profit

It has not been easy to reconcile contemporary class-action practice with traditional adversary procedure. For that matter, it is not easy to craft a unitary class-action procedure that serves well the many different purposes pursued by the many different species of class actions. The practice has flourished, but few would dare say it has really matured. Many problems remain

The (Cloudy) Future of Class Actions

The past, both proximate and remote, is often consulted in attempts to predict the future. Of course extrapolation from past to future is at best an uncertain art. Extrapolation, however, is not the only problem. Lessons from the recent past are distorted by lack of perspective. Lessons from the distant past are distorted by distance. The first step is to choose which of the competing pasts to consult. Selfishly, I choose to consult the recent past, as it continues through the present and on into the near-term future, from the perspective of the Advisory Committee on the Federal Rules of Civil Procedure. I gain at least two advantages from this perspective. The first advantage is that the Civil Rules Committee experience is familiar. Many of the observations that follow build from my own summaries of the public testimony and comments on proposals to amend Rule 23 that were published in 1996. One function of these observations, indeed, is to provide an accessible accounting to the many who took the time and effort to participate so helpfully in the rulemaking process. The proposals were intended to be relatively modest, opening opportunities to pare back the use of class actions in some settings and to expand the flexibility of class actions in other

Price Discrimination Law and Economic Efficiency

The Clayton Act, as amended by the Robinson-Patman Act (15 U.S.C. § 13), undertakes to outlaw price discrimination upon proof of threatened injury to competition, and subject to specified defenses. Lawyers often bewail the fact that administration of this statute frequently fails to conform to an economist\u27s notion of discrimination. For the most part, the complaints are addressed to the clear fact that, as drafted and interpreted, the statute wreaks unnecessary damage. In the name of protecting competition, competition and economic efficiency are often curtailed

State Law of Patent Exploitation

The main purpose of the present inquiry is to determine whether second thoughts support or undermine the instinctive supposition that the doctrines surrounding cooperative use of patents should be federal. The original creator of a patented invention is seldom in a position to exploit its commercial potential alone; even if the invention is created by the employee of a vast enterprise, it is almost inevitable that the patent will be assigned to his employer. Patent licensing plays a vitally important role in the development of many inventions. The contract doctrines surrounding such transactions, and various other consensual undertakings relating to patents, can obviously affect the value of the patent in significant ways. Unduly restrictive state laws, or wide divergences between the laws of different states, could pose a very real danger of unduly diminishing the value of federally granted patents. And conversely, we are repeatedly reminded that there is a strong public interest in ensuring that private arrangements affecting patents not be allowed to make the patents too valuable by improperly increasing the rewards the patentee is able to extract from his statutory monopoly. To some extent, indeed, misuse and antitrust doctrines have already federalized the law of patent transactions in response to this second danger. Similar dangers of undue extension or restriction of patent rights, moreover, may be found whenever state courts rule on the scope or validity of a patent

State Law of Patent Exploitation

The main purpose of the present inquiry is to determine whether second thoughts support or undermine the instinctive supposition that the doctrines surrounding cooperative use of patents should be federal. The original creator of a patented invention is seldom in a position to exploit its commercial potential alone; even if the invention is created by the employee of a vast enterprise, it is almost inevitable that the patent will be assigned to his employer. Patent licensing plays a vitally important role in the development of many inventions. The contract doctrines surrounding such transactions, and various other consensual undertakings relating to patents, can obviously affect the value of the patent in significant ways. Unduly restrictive state laws, or wide divergences between the laws of different states, could pose a very real danger of unduly diminishing the value of federally granted patents. And conversely, we are repeatedly reminded that there is a strong public interest in ensuring that private arrangements affecting patents not be allowed to make the patents too valuable by improperly increasing the rewards the patentee is able to extract from his statutory monopoly. To some extent, indeed, misuse and antitrust doctrines have already federalized the law of patent transactions in response to this second danger. Similar dangers of undue extension or restriction of patent rights, moreover, may be found whenever state courts rule on the scope or validity of a patent