The History of the Modern Class Action, Part I: Sturm Und Drang, 1953–1980

David Marcus
This Article proceeds as follows. Part I describes the regulatory and adjectival conceptions and the dilemma of class action governance, some necessary table-setting before the history can start. Part II shows how hints of the regulatory and adjectival conceptions surfaced in the drafting history of Rule 23, conflicting with politicized accounts that make claims about authorial intentions to argue for one understanding of Rule 23 or the other. Part III…

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

Alvin K. Hellerstein, James A. Henderson Jr. and Aaron D. Twerski
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. But many other harms manifested later. In the months that followed as many as 60,000 persons…


Elizabeth Chamblee Burch
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, but does so in a way that is procedurally fair and psychologically satisfying. Part I introduces…

Assembling Class Actions

Samuel Issacharoff
Five times in the past few years, the Supreme Court has engaged the propriety of class actions. Taken together, these cases revisit certain core issues in class action law, all turning on the need and justification for grouping individuals as part of a collective entity for litigation purposes. When examined from the perspective of legal treatment of individuals as part of a collective—assembling the class action, in the terminology of…

The Decline of Class Actions

Robert H. Klonoff
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. The business community also raised concerns that many multi-state class actions were brought in pro-plaintiff, state-court…

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

Troy A. McKenzie
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 complex litigation field. Understanding the path of business reorganization law helps to situate the later lessons…

The Trouble with Basic: Price Distortion after Halliburton

Jill E. Fisch
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 capital markets are efficient. In truth, both these views are overstated. Basic’s adoption of the fraud…

Lies Without Liars? Janus Capital and Conservative Securities Jurisprudence

Donald C. Langevoort
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 meaning of Rule 10b-5 because the prospectus in which the lie appeared was filed by and…

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

Adam B. Badawi
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 these trends have affected filings and litigation tactics in the Delaware Court of Chancery from 2004…

The Role of the Judge in Non-Class Settlements

Howard M. Erichson
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 subsequent rescue efforts and clean-up, framed the question more provocatively and purposively: “How do you bring…

Managerial Judging and Substantive Law

Tobias Barrington Wolff
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 is rather to ground that ongoing discussion in a richer account of the role that substantive…