The Paradox of McDonald v. City of Chicago
David S. Cohen · April 2011 79 GEO. WASH. L. REV. 823 (2011) On the last day of its 2010 Term, the Supreme Court issued the landmark decision of McDonald v. City of Chicago, holding that the Second Amendment is incorporated against state and local governments. On its face, the 5–4 decision is simple enough,... Read More
Back to the Future: Discovery Cost Allocation and Modern Procedural Theory
Martin H. Redish & Colleen McNamara · April 2011 79 GEO. WASH. L. REV. 773 (2011) This Article questions the current model of discovery cost allocation, which requires the producing party to bear the expenses associated with its opponent’s discovery requests. The current presumption forces the producing party to fund a portion of its opponent’s... Read More
Ethics and Innovation
Charles Silver · February 2011 79 GEO. WASH. L. REV. 754 (2011) Using the familiar insight that principals and agents can jointly gain by reducing agency costs, this Essay argues (1) that lawyers hoping to attract clients should seek to improve the quality of representation in mass tort cases and to signal their reliability and... Read More
Client Representation vs. Case Administration: The ALI Looks at Legal Ethics Issues in Aggregate Settlements
Thomas D. Morgan · February 2011 79 GEO. WASH. L. REV. 734 (2011) This Essay discusses the approach the American Law Institute’s Principles of the Law of Aggregate Litigation take to the issue of aggregate settlements. Contrary to Rule 1.8(g) of the ABA Model Rules of Professional Conduct, and contrary to most of the decided... Read More
The Absence of Legal Ethics in the ALI’s Principles of Aggregate Litigation: A Missed Opportunity – And More
Nancy J. Moore · February 2011 79 GEO. WASH. L. REV. 717 (2011) There is little discussion of legal ethics in the American Law Institute’s recently adopted Principles of the Law of Aggregate Litigation, either in the blackletter rules or the comments. The primary exception is that the Principles devote several sections to the so-called... Read More
Anatomy of an Aggregate Settlement: The Triumph of Temptation over Ethics
Lester Brickman · February 2011 79 GEO. WASH. L. REV. 700 (2011) This Essay explores the ethical issues that arise for plaintiffs’ lawyers involved in nonclass aggregate settlements. Rule 1.8(g) of the ABA Model Rules of Professional Conduct requires that each client in an aggregate settlement must give their informed consent to the settlement amount... Read More
Compared to What?: ALI Aggregation and the Shifting Contours of Due Process and of Lawyers’ Powers
Judith Resnik · February 2011 79 GEO. WASH. L. REV. 628 (2011) A half century ago, class actions were controversial. Aggregation was seen as permissible only under exceptional circumstances that could justify departures from the obligations of individual voice, participation, and control of the then-dominant procedural framework. The adoption in 2009 by the American Law... Read More
The Puzzling Idea of Adjudicative Representation: Lessons for Aggregate Litigation and Class Actions
Robert G. Bone · February 2011 79 GEO. WASH. L. REV. 577 (2011) Adequacy of representation is a central concept in the law of case aggregation. Not surprisingly, it plays an important role in the final report of the American Law Institute’s Principles of the Law of Aggregate Litigation project. Ever since the seminal case... Read More
Optimal Class Size, Opt-Out Rights, and “Indivisible” Remedies
David Betson & Jay Tidmarsh · February 2011 79 GEO. WASH. L. REV. 542 (2011) This Article examines the ALI’s proposal to permit opt-out rights when remedies and “divisible,” but not to permit them when remedies are “indivisible.” Starting from the ground up, the Article employs economic analysis to determine what the optimal size of... Read More
Group Consensus, Individual Consent
Elizabeth Chamblee Burch · February 2011 79 GEO. WASH. L. REV. 506 (2011) Despite a rise in the number of personal injury and product liability cases consolidated through multidistrict litigation, a decline in class certification motions, and several newsworthy nonclass settlements, such as the $4.85 billion Vioxx settlement and estimated $1.2 billion Zyprexa settlements, little... Read More