Brian T. Fitzpatrick
- Published in print:
- 2019
- Published Online:
- May 2020
- ISBN:
- 9780226659336
- eISBN:
- 9780226659473
- Item type:
- chapter
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226659473.003.0010
- Subject:
- Law, Constitutional and Administrative Law
This chapter takes seriously the best arguments against class actions and responds with appropriate reforms. For example, it is true that many of the substantive laws class actions enforce are bad ...
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This chapter takes seriously the best arguments against class actions and responds with appropriate reforms. For example, it is true that many of the substantive laws class actions enforce are bad laws. The solution is breach the principle of “trans-substantive” procedural rules and limit class action lawsuits only to the good laws, such breach of contract, fraud, and price fixing. In addition, it is true that companies sometimes oversettle meritorious class actions to avoid risk and litigation expenses. The solution is to reduce risk by using sampling during class action trials and to reduce expenses by fee shifting (or something I call a “discovery tax”) and enabling defendants to delay discovery pending interlocutory appeal of a motion to dismiss. I argue that reforms such as these are more politically feasible now than ever because the AT&T v. Concepcion decision discussed in chapter 1 has given political conservatives incredible leverage.Less
This chapter takes seriously the best arguments against class actions and responds with appropriate reforms. For example, it is true that many of the substantive laws class actions enforce are bad laws. The solution is breach the principle of “trans-substantive” procedural rules and limit class action lawsuits only to the good laws, such breach of contract, fraud, and price fixing. In addition, it is true that companies sometimes oversettle meritorious class actions to avoid risk and litigation expenses. The solution is to reduce risk by using sampling during class action trials and to reduce expenses by fee shifting (or something I call a “discovery tax”) and enabling defendants to delay discovery pending interlocutory appeal of a motion to dismiss. I argue that reforms such as these are more politically feasible now than ever because the AT&T v. Concepcion decision discussed in chapter 1 has given political conservatives incredible leverage.
