Search

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]

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]

This Article examines the problem of cy pres relief in class actions through the lens of optimal claim structure and class membership. It finds that the present cy pres doctrine does little to advance the creation of optimal class actions, and that it may do some harm to achieving that goal. The Article then proposes an alternative "nudge" to induce putative class counsel to structure class actions in an optimal way: setting attorneys' fees so that counsel is compensated through a combination of an hourly market rate and a percentage of the net recovery to the class itself. The Article demonstrates that this approach to attorneys' fees aligns the interests of the class in maximizing its recovery, class counsel in obtaining a profitable and reasonable fee, and society in certifying the class action with the greatest expected net benefit. This approach also eliminates many of the agency-cost problems associated with class counsel failing to attend to the interests of the class. Finally, this approach eliminates most of the incentive for class counsel to seek cy pres relief, although in some cases cy pres relief may yet be appropriate. [ABSTRACT FROM AUTHOR]

This Article addresses an increasingly important question: When, if ever, should foreign citizens be included as members of an American class action? The existing consensus holds that courts should exclude from class membership those foreign citizens whose country does not recognize an American class judgment. Our analysis begins by establishing that this consensus is flawed. Rather, to minimize the costs associated with relitigation in a foreign forum, we must distinguish between foreign claimants who are likely to commence a subsequent foreign proceeding from those who are unlikely to do so; distinguishing between those who come from recognizing and nonrecognizing countries creates needless inefficiency. Using standard tools of economic analysis, we examine the benefits and costs of the consensus rule and compare them to the costs and benefits of other possible rules. In this comparison, the consensus rule tends to perform poorly. As a matter of theory, the most efficient rule for deciding which foreign citizens to include and exclude is evident, but real-world informational constraints frustrate the application of this rule in practice. Because no rule regarding the inclusion and exclusion of foreign citizens is the most efficient in all situations, we propose that courts use rebuttable presumptions: include foreign citizens with claims that are not individually viable and exclude foreign citizens with claims that are viable. [ABSTRACT FROM AUTHOR]

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.

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.