Emory Law Journal

Volume 64Issue 2
The 2014 Randolph W. Thrower Symposium, American Dispute Resolution in 2020: The Death of Group Vindication and the Law?
Thrower Symposium Articles

The Preservation and Rejuvenation of Aggregate Litigation: A Systemic Imperative

Arthur R. Miller | 64 Emory L.J. 293 (2014)

Forgive me if I begin on an autobiographical note. Approximately fifty-five years ago I was a young lawyer transitioning into academe when I became indentured—enthusiastically, I admit—to my professional father, procedure teacher, and summer employer following my second law school year, Professor Benjamin Kaplan, of the Harvard Law School. He was then the Reporter for the Advisory Committee on Civil Rules of the Judicial Conference of the United States. Through a series of byzantine circumstances, I became an informal assistant reporter. I was then the Associate Director of the Columbia Law School Project on International Procedure, and one of my assignments was to convince Ben to present to the Advisory Committee a group of rule revisions I had developed relating to transnational litigation, an obscure and arcane matter at the time. That proved a relatively easy sell, and the proposals navigated the statutory rulemaking process successfully. But the quid pro quo was my commitment to help Ben with what was then at the top of the Advisory Committee’s agenda—the revision of the Federal Rules relating to claim and party joinder.

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Facilitative Judging: Organizational Design in Mass-Multidistrict Litigation

Jaime Dodge | 64 Emory L.J. 329 (2014)

Faced with the emerging phenomenon of complex litigation—from school desegregation to mass torts—the judiciary of the last century departed from the traditional, purely adjudicative role in favor of managerial judging, in which they actively supervised cases and even became involved in settlement talks. I argue that a similar transition in judicial role is now occurring. I contend that transferee judges are now stepping back from active participation in settlement discussions but playing a far greater role in structuring and administering the litigation. This new judicial role focuses on facilitating the parties’ resolution of the case, whether through settlement or remand for trial. But as transferee judges increasingly focus upon efficiently directing and sequencing litigation, their procedural and structural decisions can often have unanticipated consequences for the parties’ strategic aims. This Article therefore focuses not only upon identifying the emerging best practices for what I term “facilitative judges[closesmartdoublequote in the first days of multidistrict litigation but upon the strategic consequences these practices have for the litigation.

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Article III Standing and Absent Class Members

Theane Evangelis, Bradley J. Hamburger | 64 Emory L.J. 383 (2014)

Whether absent class members must have standing under Article III has divided the courts of appeals, with some suggesting that the requirements of Article III apply only to the named plaintiff. This Essay argues that the class action procedural device cannot change the fundamental principle that uninjured persons lack standing to have their claims adjudicated by federal courts. To hold otherwise would allow Federal Rule of Civil Procedure 23 to trump a constitutional imperative, in violation of both due process and the Rules Enabling Act, and would impermissibly expand the jurisdiction of federal courts in violation of Federal Rule of Civil Procedure 82. Before certifying a class, courts should require the named plaintiff to show that absent class member standing—like any other element of a claim—can be proven in a classwide proceeding, and should assess whether proving that absent class members have standing would entail individualized inquiries that preclude classwide adjudication.

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Ending Class Actions as We Know Them: Rethinking the American Class Action

Linda S. Mullenix | 64 Emory L.J. 399 (2014)

Class actions have been a feature of the American litigation landscape for over seventy-five years. For most of this period, American–style class litigation was either unknown or resisted around the world. Notwithstanding this chilly reception abroad, American class litigation has always been a central feature of American procedural exceptionalism, nurtured on an idealized historical narrative of the class action device. Although this romantic narrative endures, the experience of the past twenty–five years illuminates a very different chronicle about class litigation. Thus, in the twenty–first century American class action litigation has evolved in ways that are significantly removed from its golden age. The transformation of class action litigation raises legitimate questions concerning the fairness and utility of this procedural mechanism, and whether class litigation actually accomplishes its stated goals and rationales.

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Rethinking the Theory of the Class Action: The Risks and Rewards of Capitalistic Socialism in the Litigation Process

Martin H. Redish | 64 Emory L.J. 451 (2014)

Despite all of the controversial scholarship that has been published in recent years concerning the modern class action, it is both puzzling and disappointing how little of it has sought to grasp the deep structural precepts underlying the device. All too often, the scholarly debate, not to mention the political debate, has broken down along ideological lines: the political left has reflexively favored the device and the political right has reflexively opposed it. Virtually all of even the serious scholarly work done on the subject has, for the most part, been superficial, failing to pursue, much less to grasp, the practice¿s underlying foundational purposes. The goal of this Article is to seek to understand those foundational purposes. The Article argues that the DNA of the modern class action fundamentally differs from that of the traditional one on-one litigation process. The relationship between class attorney and class member, for example, is significantly different from the normal relationship between attorney and client.

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Is the Class Action Really Dead? Is that Good or Bad for Class Members?

Georgene Vairo | 64 Emory L.J. 477 (2014)

Recent Supreme Court decisions have tightened up the standards for obtaining class certification and virtually eliminate class arbitration as well. However, while the Court has made it more difficult for plaintiffs’ attorneys to use class resolution of claims as a prosecutorial tool, the lower federal courts appear to relax certification standards when the parties seek to certify a settlement class. Because of the preclusive power of a class action, which binds all class members who do not opt out, the class action remains a potent settlement tool. The 2014 Randolph W. Thrower Symposium panel that served as the foundation for this paper, “Binding the Future: Global Settlements and the Death of Representative Litigation,[closesmartdoublequote asked, however, whether class settlements are bad for class members. This Article begins by analyzing the Supreme Court’s certification decisions and agrees with most commentators that although class actions are not dead, the device’s utility as a prosecution tool has been compromised.

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Future Claimants and the Quest for Global Peace

Rhonda Wasserman | 64 Emory L.J. 531 (2014)

In the mass tort context, the defendant typically seeks to resolve all of the claims against it in one fell swoop. But the defendant’s interest in global peace is often unattainable in cases involving future claimants—those individuals who have already been exposed to a toxic material or defective product, but whose injuries have not yet manifested sufficiently to support a claim or motivate them to pursue it. The class action vehicle cannot be used because it is impossible to provide reasonable notice and adequate representation to future claimants. Likewise, nonclass aggregate settlements cannot be deployed because future claimants will not have contacted attorneys whose participation is critical to those alternative methods of dispute resolution. In lieu of class actions and nonclass aggregate settlements, this Article proposes a hybrid public–private claims resolution process designed to provide many of the benefits of global peace, while preserving the constitutional rights of future claimants and ensuring them fair compensation as their injuries manifest.

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