Managerial Judging and Substantive Law

In this Article, I examine the interface between substantive law and managerial judging. My aim is not to criticize the dominant strain of current scholarship, with its focus on endogenous values in the practice of judging. That work has posed important questions that have properly captured the attention of Academy, Bar and Bench. It isContinue reading “Managerial Judging and Substantive Law”

The Role of the Judge in Non-Class Settlements

What is the role of the judge in aggregate litigation? That was the question posed to Judge Alvin Hellerstein and several panelists, including myself, at the 2012 Symposium of the Institute of Law and Economic Policy. Judge Hellerstein, who has overseen the litigation arising out of both the September 11 terrorist attacks and the subsequentContinue reading “The Role of the Judge in Non-Class Settlements”

Merger Class Actions in Delaware and the Symptoms of Multi-Jurisdictional Litigation

Recent research on corporate litigation has focused on three trends: the growth in percentage of mergers that result in litigation, the migration of cases away from Delaware, and the increasing prevalence of merger litigation occurring simultaneously in multiple jurisdictions. This Article uses a new and unique dataset of public company litigation to track how theseContinue reading “Merger Class Actions in Delaware and the Symptoms of Multi-Jurisdictional Litigation”

Lies Without Liars? Janus Capital and Conservative Securities Jurisprudence

In Janus Capital Group, Inc. v. First Derivative Traders, the Supreme Court held that even if a mutual fund advisory firm had caused a lie about its late trading and market timing policies to appear in a prospectus issued by a mutual fund that it managed, it did not make a misrepresentation within the meaningContinue reading “Lies Without Liars? Janus Capital and Conservative Securities Jurisprudence”

The Trouble with Basic: Price Distortion after Halliburton

Many commentators credit the Supreme Court’s decision in Basic, Inc. v. Levinson, which allowed courts to presume reliance rather than requiring individualized proof, with spawning a vast industry of private securities fraud litigation. Today, the validity of Basic’s holding has come under attack as scholars have raised questions about the extent to which the capitalContinue reading “The Trouble with Basic: Price Distortion after Halliburton”

Bankruptcy and the Future of Aggregate Litigation: The Past as Prologue?

Part I of this Article recounts the development of the law of business reorganizations and the sustained attack on bankruptcy practice that culminated in the hobbling of the reorganization bar during the New Deal. I provide a good deal of detail about these historical developments, because they are largely unknown to those in the complexContinue reading “Bankruptcy and the Future of Aggregate Litigation: The Past as Prologue?”

The Decline of Class Actions

This Article argues that in recent years courts have cut back sharply on plaintiffs’ ability to bring class action lawsuits, thereby undermining the compensation, deterrence, and efficiency functions of the class action device. Starting in the mid-1990s, courts began expressing concern about the pressure on defendants to settle after a decision certifying a class. TheContinue reading “The Decline of Class Actions”


This Article explores a central theme that ties together rationales to exit aggregation of tort claims: disaggregating helps to protect litigants’ substantive rights and furthers the public’s faith in a legitimate judicial system. Disaggregating promotes adjudication’s principal purpose, which is to produce outcomes that reflect parties’ substantive entitlements as defined by applicable state laws, butContinue reading “Disaggregating”

The 9/11 Litigation Database: A Recipe for Judicial Management

The terrorist attacks on the Twin Towers on September 11, 2001, presented the American legal system with unprecedented challenges regarding whether, and how, to compensate those who suffered harm as a result. Congress stepped in almost immediately to provide a victims’ compensation fund that dealt primarily with those who were directly and immediately affected. ButContinue reading “The 9/11 Litigation Database: A Recipe for Judicial Management”