Friday, July 20, 2012
Elizabeth Chamblee Burch (University of Georgia and co-blogger on this illustrious blog) has just posted Governing Securities Class Actions on SSRN. Here's the abstract:
This short essay, written for a symposium on The Principles and Politics of Aggregate Litigation: CAFA, PSLRA, and Beyond, decouples due process from a proceduralist’s intuition and explains why it matters in securities class actions. It begins by exploring several analytical models that shed light on the representative relationship in class actions, including a public law analogy to the administrative state, a private law analogy to corporate law, and another, more modern public law analogy to political governance. After finding that the political-governance model best addresses both sources of inadequate representation in securities class actions — rifts between class members and class counsel, and between class members and their lead plaintiff — this Essay argues that incorporating qualified class members into securities class action governance will improve due process and legitimacy in securities litigation just as it does in the political sphere.
(h/t Robin Effron at the Civil Procedure and Federal Courts Blog). I also address the issue of due process in class actions here. Although I focus on mass torts, the argument extends to the securities context. I am also working on a new project that tries to get away from governance analogies and focuses on the property reassignments created by the class action. I hope to have the piece, entitled "The Trust Function of the Class Action," available soon. In the meantime, Beth's essay is excellent and definitely worth reading!