Friday, November 30, 2012
On November 26 the Supreme Court denied cert in RJ Reynold Tobacco Co. v. Clay, an appeal from a Florida state court decision to give the Engle court ruling preclusion effect.
Engle, recall, is the tobacco issue class action certified and upheld by the Florida Supreme Court. Does the denial of cert pave the way for issues class actions to flourish (at least for the moment) or is this just not the right vehicle?
See Scotusblog for a summary and links. ADL
Wednesday, November 28, 2012
Prof. John C. Coffee and I have posted "The New Class Action Landscape: Trends and Developments in Certification and Related Topics" on SSRN.
This is a memorandum that provides an overview of the trends and highlights in class certification rulings from 2012. Its going to be another interesting year for class actions at the Supreme Court and we provide a summary and evaluation of the upcoming cases, in addition to highlighting appellate and district court cases of interest.
On Friday, Nov. 30, Fordham Law School will host a symposium entitled Lawyering for Groups: Civil Rights, Mass Torts, and Everything in Between. Organized by Benjamin Zipursky and myself, the conference participants include Elise Boddie, Elizabeth Burch, Kristen Carpenter, Brian Fitzpatrick, Bruce Green, Samuel Issacharoff, Alexandra Lahav, Troy McKenzie, Nancy Moore, Russell Pearce, Theodore Rave and Eli Wald. It is co-sponsored by the Stein Center for Law and Ethics and by the Fordham Law Review, which will publish the papers.
As I read the authors' drafts in preparation for the symposium, I am struck by how difficult the fundamental questions remain. What does it mean, really, for a lawyer to represent a group of similarly situated claimants? Is it a bundle of individual lawyer-client relationships, or is it better understood in practice as a relationship between a lawyer and a group, with the primary duty owed to the group as a whole? Does class certification fundamentally change the nature of the representation, or in some cases is the class action better understood as an acknowledgement of the reality of mass representation and the imposition of a set of procedural protections?
I am struck, as well, by how these questions transcend any particular area of practice. The symposium grew out of Ben Zipursky's and my shared interest in the ethics of group lawyering. He and I have lectured to mass tort lawyers on ethics in mass tort litigation, as well as to civil rights lawyers on the ethics of civil rights litigation. Each area brings its own challenges, but the core questions about collective representation apply to both. Convinced that these issues deserve attention, we pulled together a group of proceduralists and ethicists with widely varying views on aggregate litigation and different areas of expertise. I'm looking forward to learning a lot. The agenda is here.
Tuesday, November 27, 2012
Call for Papers: "The Public Life of the Private Law: The Logic and Experience of Mass Litigation" A Conference in Honor of Richard A. Nagareda
Here's the announcement from Vanderbilt Law School:
Vanderbilt Law School announces a conference in honor of the late Richard Nagareda, the David Daniels Allen Distinguished Chair in Law and founding Director of the Cecil D. Branstetter Litigation and Dispute Resolution Program. “The Public Life of Private Law: The Logic and Experience of Mass Litigation” Conference will be held on September 27 and 28, 2013, at Vanderbilt and is jointly sponsored by the Branstetter Program, the Journal of Tort Law, and the University of Texas Center on Lawyers, Civil Justice, and the Media. Conference organizers are Tracey George (Vanderbilt), John Goldberg (Harvard), Sam Issacharoff (NYU), and Charlie Silver (Texas). We invite junior scholars to submit paper proposals for the conference by February 15.
In the spirit of Oliver Wendell Holmes, Richard Nagareda devoted himself to studying the life of the law‐‐the law as it actually plays out in lawyer‐client relationships, the maneuvering of adversary litigation, the efforts by judges to manage an unruly litigation process, and the construction of elaborate settlement agreements that now dominate the modern landscape of civil litigation. Yet despite his relentless focus on the “realities” of civil litigation, Richard never fell prey to skepticism about law. Indeed, he insisted that lawyerly efforts to fashion new claims and new forms of dispute resolution are and should be shaped by substantive law, the rules of professional responsibility, and ultimately principles of administrative law. The hallmark of his work is its commitment to taking seriously both the logic and the experience of mass tort law and complex litigation.
This conference pays homage to Richard’s scholarship by inviting a new generation of scholars to address topics and concerns related to his work. Each panel will be organized around a junior scholar’s paper with senior scholars commenting on papers. Senior scholars will include Lynn Baker, Bob Bone, Beth Burch, Brian Fitzpatrick, Tracey George, Myriam Gilles, John Goldberg, Sam Issacharoff, Bill Rubenstein, Suzanna Sherry, Charlie Silver, and Patrick Woolley. All papers and comments will be published in the Journal of Tort Law.
If you are a junior scholar interested in participating, please submit a five‐page paper proposal to Branstetter.Program@vanderbilt.edu no later than February 15. If your proposal is accepted, we will inform you by March 15. All travel expenses will be covered for invited junior scholars. If you have any questions, please email Branstetter Director Tracey George (email@example.com).ECB