January 22, 2010
Redish on Whether Class Actions are Unconstitutional
Both the ABA Journal and Forbes have recently featured Professor Martin Redish's book, Wholesale Justice. As he points out in a comment to the ABA article, both pieces "somewhat overstate and simplify my position. I do not really suggest that class actions are inherently unconstitutional." The book itself is an interesting meld of class action theory, constitutional theory, and democratic theory. Although it's impossible to summarize the book in a short blog post, here's a quote from page 231 in which he recommends three pivotal changes:
The major constitutionally dictated changes would be (1) the settlement class action (i.e., a proceeding in which certification has been sought solely on the condition that the court approve a prearranged settlement) would be held to contravene the case-or-controversy requirement of Article III; (2) all mandatory classes, with the possible exception of the (b)(1)(A) category involving situations in which inconsistent behavior on the part of the party opposing the class toward individual class members would be either impossible or unduly oppressive, would be deemed violations of the Due Process Clause; and (3) the existing opt-out structure for (b)(3) classes would be found both to violate due process and to depart from key notions of democratic theory, except in situations in which the individual claims, though sufficiently large to reasonably justify the filing of a claim form as part of a settlement or judicial award, would be insufficiently large to justify individual suit.
For the interested reader, Sam Issacharoff has written a number of articles that provide a counterpoint to Redish's arguments.
January 21, 2010
Bellwether Trials in the NuvaRing Litigation
Robin Effron (Brooklyn) over at Civil Procedure and Federal Courts Blog prints a fun quote from the NuvaRing litigation. See this link to her post: "Gender Theory and Bellwether Trials."
January 20, 2010
Exxon Radiation Litigation
January 19, 2010
Update on Collective Redress in England and Wales
Back in November of 2008, England and Wales asked Lord Justice Jackson to review civil litigation costs and how those costs affected access to justice. He recently issued his final report (a hefty 584 pages). BBC News calls the report a "radical plan[ ] to shake up costs of civil cases." Here's an excerpt of the story:
Lord Justice Jackson's Review of Civil Litigation Costs is a result of a recognition that it is simply too expensive for many people and small companies to bring or defend civil cases.
"What I want to do is to focus the system so less money is paid to intermediaries and others in the process, and more money is paid to victims," he told the BBC.
"I am concerned about individuals, small businesses and others who need to use the courts."
His proposals are radical. He has looked at the factors forcing costs up in civil actions, and in particular he has focussed on Conditional Fee Agreements (CFAs), more commonly known as "no win, no fee" agreements.
Despite BBC's headline, the final report was ultimately less radical than the preliminary one, which leaned toward abolishing England's cost-shifting "loser pays" rule. The final report concludes that cost shifting should remain the norm (even in collective actions), but excepts personal injury claims from the norm. Whether personal injury claims are brought individually or collectively, the final report recommends "qualified one-way costs shifting" where winning claimants could recover their costs from the defendant, but generally do not have to pay the defendant's costs if they lose.
Of additional import, the final report recommends that solicitors and barristers should be allowed to enter into contingency fee arrangements, which are currently prohibited. Before entering into such an arrangement, the report recommends that claimants receive independent advice. It also suggests capping the fees at 25%.
Finally, the report recommends making third-party funding available to personal injury claimants (including those involved in collective actions). It defines third party funding as "The funding of litigation by a party who has no pre-existing interest in the litigation, usually on the basis that (i) the funder will be paid out of the proceeds of any amounts recovered as a consequence of the litigation, often as a percentage of the recovery sum; and (ii) the funder is not entitled to payment should the claim fail." (Final Report at p. 17). Very interesting.
January 17, 2010
On a lighter note, I thought our readers might enjoy Weird Al's video and song for "I'll Sue Ya," in which he sets the joy of tort litigation to the sounds of Rage Against the Machine. (Thanks to my son for playing all those Weird Al videos.)