Science in the Court: Is There a Role for Alternative Dispute Resolution

It is suggested that alternative dispute resolution procedures might remedy perceived problems in court procedures for dealing with scientific questions in medical malpractice, product liability and toxic tort litigation

What We Don\u27t Know About Class Actions but Hope to Know Soon

Legislation that would alter class action practice in the federal courts has been pending in Congress. Nearly a decade’s worth of U.S. Supreme Court cases have restricted the scope and ease of use of the class action device. Class action critics argue that class litigation is a “racket” that fails to compensate plaintiffs and instead enriches plaintiffs’ lawyers at the expense of legitimate business practices. On the other hand, defenders of class actions decry the legislative and judicial forces aligned against them, warning that trends in class action law will eviscerate the practical rights held by consumers and workers. In short, there is considerable controversy over whether class actions are an economic menace or a boon to the little guys. We have two purposes in this brief Article. First, we wish to focus continuing attention on the need for more empirical information about the actual functioning of the federal class action system. Second, we wish to share our current efforts to use a one-of-a-kind collection of docket reports, originally harvested from Public Access to Court Electronic Records (PACER), to fill the empirical gap. Presentation of empirical findings resulting from this effort awaits a future article. However, this Article includes suggestions as to how the federal judiciary and Administrative Office of the United States Courts (“AO”) could improve data management and data reporting so as to make information about federal class actions more accessible to scholars and others interested in how the class action device operates in practice and what reforms, if any, would be advisable

“Volunteering” to Arbitrate Through Predispute Arbitration Clauses: The Average Consumer’s Experience

This article helps build the empirical foundation necessary for an informed debate regarding arbitration clauses in consumer contracts by providing preliminary insight into how businesses\u27 use of these clauses affects consumers\u27 ability to pursue their legal rights. To this end, the article reports the results of a study investigating, in a wide variety of consumer purchases, the frequency with which the average consumer encounters arbitration clauses, the key provisions of these clauses, and the implications of these clauses for consumers who subsequently have disputes with businesses they patronize

Can Private Class Actions Enforce Economic Regulations? Do They? Should They?

Introduction: Fifty years ago representative class actions – lawsuits in which one or a few persons or entities are permitted to litigate on behalf of large numbers of other claimants who are not before the court – were unique to the United States. Although many jurisdictions permitted parties with similar claims to petition the court to proceed jointly with regard to some or all issues (termed “permissive joinder” in U.S. law2), the notion that a party could come forward of his, her or its own accord, claiming to represent similarly situated others (“the class”) without those others’ active consent was considered radical, a violation of due process or perhaps even of human rights. In the view of many legal scholars and public officials, the right to pursue a remedy for personal injury, property damage, breach of contract, or violation of a constitutional right is akin to a property right and belongs to the injured individual. From this perspective, allowing someone else to claim a legal remedy on behalf of an injured party interferes with individual autonomy. Today, however, a growing number of countries provide by law for representative class actions. The trend began in Anglo-American countries with common law systems (e.g. Australia, Canada, Israel), and then spread to civil law regimes in Asia, Europe and South America. To date, at least two dozen countries, with political structures ranging from participatory democracies to one-party autocracies, and ideological perspectives ranging from neo-liberal to communist, have adopted some sort of representative class action procedure (see Table 1). Seventeen of the 25 countries with the largest economies, as measured by GDP,3 permit class actions for one or more types of claims. Most of these procedures were adopted in the last twenty years