CAFA\u27s Impact on Litigation as a Public Good

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\u27s 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. It also develops an implicit but overlooked theme within the CAFA debate - the notion that litigation itself is a public good

Financing Issue Classes: Benefits and Barriers to Third-Party Funding

This essay, written for NYU\u27s symposium on Litigation Funding: The Basics and Beyond, explores the costs and benefits of using third-party financing to fund issue class actions

Aggregation, Community, and the Line Between

This is the published version

Between \u27Merit Inquiry\u27 and \u27Rigorous Analysis\u27: Using Daubert to Navigate the Gray Areas of Federal Class Action Certification

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 class certification. This hesitation primarily arises from a fear of moving into the substantive merits of the case. Certifying a class based on unreliable expert testimony forces courts to decertify the class later in the process, encourages frivolous suits that strong-arm risk averse defendants into settlement, wastes judicial resources, and undermines the legitimate purposes of the class action mechanism. Ideally, to make a fair and informed decision on certification, judges should use the wide latitude in the current gray area between Eisen v. Carlisle & Jacquelin\u27s prohibition on an inquiry into the case\u27s merits and General Telephone Company v. Falcon\u27s rigorous analysis requirement to (1) routinely apply Daubert as a precursor to admitting expert evidence, (2) adequately weigh opposing expert opinions as well as the rest of the evidence, and (3) employ a preponderance of the evidence standard to determine the sufficiency of the plaintiffs\u27 proof before resolving ambiguities in favor of the plaintiffs and erring on the side of certification. This Comment takes a closer look at the judicial handling of experts in federal class certification hearings, the amount of proof required for certification, and how courts evaluate the sufficiency of the evidence. The Comment ultimately argues that courts should admit expert affidavits and reports only if they survive an initial Daubert analysis

There\u27s a Pennoyer in My Foyer: Civil Procedure According to Dr. Seuss

This is what it purports to be: a Seussian take on civil procedure. It’s a short, fun essay that covers (1) the iron triangle of civil procedure - the role of lawyers, judges, and juries, and (2) prominent civil procedure doctrines, such as personal jurisdiction, Erie, pleading, discovery, and joinder

Adequately Representing Groups

Adequate representation and preclusion depend on whether the courts treat a litigant as part of a group experiencing an aggregate harm or as a distinct person suffering individual injuries. And though a vast literature about adequate representation exists in the class-action context, it thins dramatically when contemplating other forms of group litigation, such as parens patriae actions and multidistrict litigation. As class actions have gradually fallen into disfavor and attorneys and commentators seek alternative means for resolving group harms, the relative clarity of Rule 23 wanes. How should courts evaluate adequate representation in parens patriae actions and in multidistrict litigation? The answer to this question matters immensely since adequate representation is critical to precluding relitigation and achieving finality. This Article suggests that courts should differentiate between inadequate representation claims based on the underlying right at stake. When the underlying right arises from an aggregate harm — a harm that affects a group of people equally and collectively — and demands an indivisible remedy, courts should tolerate greater conflicts among group members when evaluating a subsequent claim of inadequate representation. Because the harm is aggregate and the remedy is indivisible (typically declaratory or injunctive relief), if one group member receives the remedy, then they all receive the remedy. The litigation operates to group members’ benefit or detriment equally, so if one group member is inadequately represented, they are all inadequately represented. Consequently, a subsequent litigant can successfully avoid preclusion only where the lawyers or the named representatives acted contrary to the group’s best interests or attempted to represent an overinclusive, noncohesive group where some members required unique relief that the representative had no selfish reason to pursue. Conversely, when plaintiffs suffer individual injuries at the same defendant’s hands and unite their claims for economic or efficiency reasons, that aggregation does not convert their individual injuries into an aggregate harm. When counsel fails to fairly represent her client in vindicating that harm, inadequate representation is an individual injury. In multidistrict litigation and Rule 23(b)(3) class actions, which typically include individuals litigating their individual harms together for systematic and litigant efficiency, courts should look for “structural conflicts” between the claimants themselves as well as between the representatives and the claimants. This means that both initially and on a collateral attack, courts should accept fewer conflicts than in cases involving aggregate rights. Accordingly, judges should assess whether there are reasons the lawyers “might skew systematically the conduct of the litigation so as to favor some claimants over others on grounds aside from reasoned evaluation of their respective claims or to disfavor claimants generally vis-à-vis the lawyers themselves.

A New Way Forward: A Response to Judge Weinstein

This short essay responds to Judge Jack Weinstein\u27s essay, Preliminary Reflections on Administration of Complex Litigations, 2009 Cardozo De Novo 1. In so doing, it also provides a condensed version of my earlier article, Litigating Groups, which analyzes group dynamics within nonclass aggregation. By drawing on the literature of moral and political philosophy as well as social psychology, I contend that, in the face of hard cases, of instability and disunity, plaintiffs who have made promises and assurances to one another can invoke social norms of promise-keeping, social agglomeration, compatibility, and the desire for means-end coherence to achieve consensus, mitigate client-client conflicts, and re-tether their attorney to their needs. Thus, using groups to overcome the problems in nonclass aggregation not only makes sense from a group responsibility perspective, it may also harmonize with wealth maximization and individual autonomy goals

Constructing Issue Classes

As government budgets shrink each year, enforcement responsibilities in products liability, consumer protection, and employment discrimination fall increasingly to private attorneys. But defendants have successfully layered new objections about noncohesive classes and unascertainable members atop legislative and judicial reforms to cripple plaintiffs’ attorneys’ chief weapon — the class action. The result? Courts deny class certification and defendants escape enforcement by highlighting the differences among those affected by their misconduct. At the other end of the regulatory spectrum lies the opposite problem. Some defendants’ actions are so egregious that hordes of public and private regulators can’t help but get involved — think the GM ignition switch debacle or the BP Oil Spill, for example. Whether regulators are chasing splashy headlines, easy money, or public support, the result is a cacophony of litigation in dispersed fora that risks inefficient resource use and inconsistent verdicts regarding a defendant’s conduct. A one-line sentence buried within Rule 23 offers a partial elixir for problems at both ends of the enforcement spectrum. That sentence, Rule 23(c)(4), allows courts to certify certain issues for class treatment. While issue certification is experiencing a renaissance in the courts, scholarship has stagnated. Commentators have fixated on the technical to-be-or-not-to-be question of how to read Rule 23(c)(4) within the rule’s predominance requirement. But they have offered strikingly little theory or guidance on how issue classes might revive private enforcement and coordinate fractured regulatory responses through issue preclusion. This Article aims to fill that void with an alternative theory of class cohesion — a term that appears nowhere in Rule 23, but has emerged at the center of Supreme Court jurisprudence. This theory not only informs the class-certification calculus by identifying core questions ripe for issue-class adjudication, but also simplifies vexing questions over the sufficiency of aggregate proof and class members’ ascertainability. Shedding anachronistic, stereotypical notions that immutable characteristics like gender and race fuse members into a cohesive class can reveal what often unites groups for adjudication purposes: defendant’s uniform conduct. When a defendant’s actions are non-individuated (GM’s failure to take appropriate safety precautions, for example), litigating the components within a claim or defense that regulate defendant’s conduct on a classwide basis can revive private enforcement and stymie inconsistent outcomes through preclusion

Securities Class Actions as Pragmatic Ex Post Regulation

Securities class actions are on the chopping block-again. Traditional commentators continue to view class actions with suspicion; they see class suits as nonmeritorious byproducts of self-interest and the attorneys who bring them as rent-seekers. Their conventional approach has popularized securities class actions\u27 negative effects. High-profile commissions capitalizing on this rhetoric, such as the Committee on Capital Markets Regulation, have recently recommended eliminating or severely curtailing securities class actions. But this approach misses the point: in the ongoing push and pull of securities regulation, corporations are winning the battle. Thus, understanding the full picture and texture of securities class actions necessitates a positive pragmatic account. This Article provides that account and thus fills a significant gap in the benefit side of academic cost-benefit literature. To do so, however, it self-consciously begins from a controversial assumption: namely, that securities class actions provide a public good. Integrating both public and private actors into ex post enforcement diminishes collective action dilemmas, agency inaction, and private resolution of public law matters through arbitration. Moreover, by supplementing ex post enforcement, securities class actions produce positive externalities, spillover effects that confer public advantages such as: innovation, cost-reduction through information sharing, deterrence, transparent judicial process, and both corporate and enforcement accountability. So, while I harbor no illusion that the securities class action always functions optimally and have a number of lingering doctrinal and jurisprudential concerns about its operation, I also recognize its comparative institutional capability to make transparent an increasingly opaque process, craft decisional rules and interpretations that guide future behavior, cultivate innovation, deter fraud, and hold corporations, exchanges, and the SEC publicly accountable. This piece thus envisions the ramifications of eliminating securities class actions by imagining a world with government-centric securities enforcement. That world, I contend, is one steeped in bureaucracy, one failing to produce behavior-guiding precedent, one filled with closed-door arbitrations, one neglecting nonprioritized misconduct, and one ignoring litigant preference for judicial process. In short, it is a world less preferable than our current system-flawed though it is