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This Article uses two recent decisions—one prohibiting incentive awards to class representatives and one permitting disgorgement of side payments to class objectors—to explore deeper connections between classaction settlements and the law of restitution. The failure to correctly apply the law of restitution led both courts astray. First, courts can approve incentive awards, as long as an award properly reflects the benefit that the representative’s efforts bestowed on the class. Second, restitution provides a basis to disgorge improper side payments to objectors, but only under conditions different from those that the court described. More broadly, attention to the substantive and remedial principles of restitution can provide useful solutions to vexing problems of class-action practice. [ABSTRACT FROM AUTHOR]

I would like to thank the Law Review for their generous invitation to participate in this symposium about the future of discovery in our civil justice system. Before starting, let me mention that the comments that I express here today are mine alone. Let me begin with a few words about my perspective. I began my legal career as a prosecutor in the Army. When I got off of active duty, I became a local county prosecutor. In criminal law, we didn't have discovery problems. We had an "open file" policy, where we disclosed all the evidence we had, and we either worked out a plea or tried the case. There were lots of both. Then I became an assistant attorney general in This Article proposes a system in which both parties are provided an opportunity to opt out of discovery. A party who opts out is immunized from dispositive motions, including a motion to dismiss for failure to state a claim or a motion for summary judgment. If neither party opts out of discovery, the parties waive jury-trial rights, thus giving judges the ability to use stronger case-management powers to focus the issues and narrow discovery. If one party opts out of discovery but an opponent does not, the cost of discovery shifts to the opponent. This Article justifies this proposal in both historical and efficiency terms and concludes by considering objections to the proposal. [ABSTRACT FROM AUTHOR]

This Article uncovers the history of a long-forgotten English court system, the "fire courts," which Parliament established to resolve disputes between landlords and tenants in urban areas destroyed in catastrophic fires. One of the fire courts' remarkable features was the delegation of authority to judges to adjudicate disputes without juries. Because the Seventh Amendment's right to a federal civil jury trial depends in part on the historical practice of English courts in 1791, this delegation bears directly on the present power of Congress to abrogate the use of juries in federal civil litigation. Parliament enacted fire-courts legislation on eight occasions between the mid-seventeenth century and the nineteenth century. This Article particularly emphasizes the first and largest of these courts, established after the Great Fire of London in 1666. Archival research into 1,585 cases resolved by the London Fire Court reveals that the Fire Court never employed juries to resolve contested factual matters. This Article argues that the history of these courts provides a limited but clear power for Congress to strike the right to civil juries in federal court. [ABSTRACT FROM AUTHOR]

Because of fears that litigation is too costly, reduction of litigation expenses has been the touchstone of procedural reform for the past thirty years. In certain circumstances, however, the parties have incentives--both rational and irrational--to spend more on a lawsuit than the social benefits that the case provides. Present and proposed reform efforts do not adequately address these incentives, and, in some instances, exacerbate the parties' incentives to overspend. The best way to ensure that the cost of a lawsuit does not exceed the benefits that it provides to the parties and society is to control spending directly: to require the parties to file and live within litigation budgets. These "costs budgets," which are already in use in the United Kingdom, help to ensure that the costs of litigation remain less than the benefits. After describing the workings of a costs-budget system, the Article considers practical, political, and constitutional critiques. None of these concerns is disabling. American rulemakers who are serious about containing the litigation costs should grant courts the power to use costs budgets. [ABSTRACT FROM AUTHOR]

The article discusses the proposed resurrection of a trial by statistics (TBS) program in America which allows a judge to hear a small amount of the total number of cases and resolve mass disputes with varying amounts of individual damages. According to the article, the U.S. Supreme Court unanimously disapproved of TBS in the 2011 case Wal-Mart Stores Inc. v. Dukes. American class action litigation and liability are examined, as well as legal settlements and trials in the U.S.

Although class actions promise better deterrence at a lower cost, they are infected with problems that can keep them from delivering on this promise. One of these problems occurs when the agents for the class--the class representative and class counsel--advance their own interests at the expense of the class. Controlling agency cost, which often manifests itself at the time of settlement, has been the impetus behind a number of class action reform proposals. This Article develops a proposal that, in conjunction with reforms in fee structure and opt-out rights, controls agency costs at the time of settlement. The idea is to allow the court, once a settlement has been achieved, to put the class's claims up for auction, with the settlement acting as a reserve price. An entity that outbids the settlement becomes owner of the class's claims and may continue to pursue the case against the defendant. A successful auction results in more compensation for the class. On the other hand, if no bids are received, the court has evidence that the settlement was fair. The prospect of a settlement auction also deters class counsel and the defendant from negotiating a sweetheart deal that sells out the class. The Article works through a series of theoretical and practical issues in settlement auctions, including the standards that a court should use to evaluate bids, the limitations on who may bid, and ways to encourage the emergence of an auction market. [ABSTRACT FROM AUTHOR]

One of Professor Redish's many important contributions to legal scholarship is his recent work on class actions. Grounding his argument in the theory of democratic accountability that has been at the centerpiece of all his work, Professor Redish suggests that, in nearly all instances, class actions violate the individual autonomy of litigants and should not be used by courts. This Essay begins from the opposite premise: that class actions should be grounded in the notion of social utility rather than autonomy so that class actions should be used whenever they achieve net social gains. This idea of "superiority" presents some difficulties, not the least of which is the capacity of a court to determine whether a class action is indeed superior to other forms of dispute resolution. The Essay proposes a series of presumptions that give effect to superiority and make an inquiry into superiority easier for courts to conduct. When the results obtained by these presumptions are examined, they do not result in the near-absolute position against class actions that Professor Redish favors, but surprising convergences in the autonomy and utility approaches emerge. [ABSTRACT FROM AUTHOR]

An introduction is presented in which the editor discusses various reports within the issue on topics including the examination of the jurisprudential commitments underlying the Erie doctrine, difficulties of the rule interpretation and statutory in the Erie context, and relationship between concerns for federalism and procedural Erie doctrine.

The article focuses on the proposition of a principle explaining the results of the Enabling Act and procedural Erie cases in the U.S. Supreme Court. It avoids the efficiency-based or rights-based arguments with discussions on procedure. It investigates the tests used in identifying when the federal courts should apply a state-based rule. It also assumes that the Act and the Erie cases are good as they reflect the proper rulemaking authority allocation between the state and the federal systems.

An essay is presented regarding the principle of on the merits. It explores the definition of on the merits with regards to legal issues and facts, considering the need for a resolution that can be defended through exercising of reason. It discusses the resolution for cases on the merits, which requires a decision with the use of procedural rules. Meanwhile, the principle of on the merits needs consideration of parochial interests on order to ahieve fair outcome.

Discussions of sovereign immunity assume that the Constitution contains no explicit text regarding sovereign immunity. As a result, arguments about the existence--or nonexistence--of sovereign immunity begin with the English and American common-law doctrines. Exploring political, fiscal, and legal developments in England and the American colonies in the seventeenth and eighteenth centuries, this Article shows that focusing on common-law developments is misguided. The common-law approach to sovereign immunity ended in the early 1700s. The Bankers' Case (1690-1700), which is often regarded as the first modern common-law treatment of sovereign immunity, is in fact the last in the line of English common-law decisions on sovereign immunity. After (and in part because of) the Bankers' Case, settling claims against the Crown became a function of Parliament, swept up within its newly won powers over finance and appropriations. After examining comparable developments in the American colonies and during the Confederation period and the formation of the Constitution, the Article demonstrates that the Appropriations Clause embedded in the Constitution the principle of congressional supremacy--and a resulting lack of judicial power--over monetary claims against the United States, a point recognized by early cases and commentators. As such, the Appropriations Clause provides a textual basis for the federal government's immunity from suits on claims seeking money damages. [ABSTRACT FROM AUTHOR]

The article focuses on the principle of adequate representation. It explores class actions and adequate representation within the pattern of U.S. adversarialism. It argues that representation by class representatives is adequate if and only if the representation puts class members in a better position that if they had engaged in individual litigation. It attempts to respond to oppositions against such an argument and explains how such hypothesis averts any tension between the use of class treatment and the demands of adequate representation.

Discusses the theory of federal common law, placing emphasis on cases in which the U.S. Supreme Court acknowledges that it is establishing federal common law. Description of the conflicting definitions of federal common law and its enclaves; Review of the academic literature and the inadequacy of the positions that have emerged to explain or criticize federal common law; Development of the theory of federal common law.

Explores the relationship between philosopher Alfred North Whitehead's process philosophy and the nature of law to develop a theory of jurisprudence. Interpretation on the philosophy of Whitehead; Discussion on his system of metaphysics; Overview on the relation of metaphysics with human civilization; Whitehead's views on the nature of law.