American Bankruptcy Institute Law Review 17 Am. Bankr. Inst. L. Rev., No. 1, Spring, 2009. Boston College Law Review 50 B.C. L. Rev., No. 3, May, 2009. Boston University Public Interest Law Journal 18 B.U. Pub. Int. L.J., No. 2, Spring, 2009. Cardozo Journal of Conflict Resolution 10 Cardozo J. Conflict Resol., No. 2, Spring, 2009. Cardozo Public Law, Policy, & Ethics Journal 7 Cardozo Pub. L. Pol’y & Ethics J., No. 3, Summer, 2009. Chicago Journal of International Law 10 Chi. J. Int’l L., No. 1, Summer, 2009. Colorado Journal of International Environmental Law and Policy 20 Colo. J. Int’l Envtl. L. & Pol’y, No. 2, Winter, 2009. Columbia Journal of Law & the Arts 32 Colum. J.L. & Arts, No. 3, Spring, 2009. Connecticut Public Interest Law Journal 8 Conn. Pub. Int. L.J., No. 2, Spring-Summer, 2009. Cornell Journal of Law and Public Policy 18 Cornell J.L. & Pub. Pol’y, No. 1, Fall, 2008. Cornell Law Review 94 Cornell L. Rev., No. 5, July, 2009. Creighton Law Review 42 Creighton L. Rev., No. 3, April, 2009. Criminal Law Forum 20 Crim. L. Forum, Nos. 2-3, Pp. 173-394, 2009. Delaware Journal of Corporate Law 34 Del. J. Corp. L., No. 2, Pp. 433-754, 2009. Environmental Law Reporter News & Analysis 39 Envtl. L. Rep. News & Analysis, No. 7, July, 2009. European Journal of International Law 20 Eur. J. Int’l L., No. 2, April, 2009. Family Law Quarterly 43 Fam. L.Q., No. 1, Spring, 2009. Georgetown Journal of International Law 40 Geo. J. Int’l L., No. 3, Spring, 2009. Georgetown Journal of Legal Ethics 22 Geo. J. Legal Ethics, No. 2, Spring, 2009. Golden Gate University Law Review 39 Golden Gate U. L. Rev., No. 2, Winter, 2009. Harvard Environmental Law Review 33 Harv. Envtl. L. Rev., No. 2, Pp. 297-608, 2009. International Review of Law and Economics 29 Int’l Rev. L. & Econ., No. 1, March, 2009. Journal of Environmental Law and Litigation 24 J. Envtl. L. & Litig., No. 1, Pp. 1-201, 2009. Journal of Legislation 34 J. Legis., No. 1, Pp. 1-98, 2008. Journal of Technology Law & Policy 14 J. Tech. L. & Pol’y, No. 1, June, 2009. Labor Lawyer 24 Lab. Law., No. 3, Winter/Spring, 2009. Michigan Journal of International Law 30 Mich. J. Int’l L., No. 3, Spring, 2009. New Criminal Law Review 12 New Crim. L. Rev., No. 2, Spring, 2009. Northern Kentucky Law Review 36 N. Ky. L. Rev., No. 4, Pp. 445-654, 2009. Ohio Northern University Law Review 35 Ohio N.U. L. Rev., No. 2, Pp. 445-886, 2009. Pace Law Review 29 Pace L. Rev., No. 3, Spring, 2009. Quinnipiac Health Law Journal 12 Quinnipiac Health L.J., No. 2, Pp. 209-332, 2008-2009. Real Property, Trust and Estate Law Journal 44 Real Prop. Tr. & Est. L.J., No. 1, Spring, 2009. Rutgers Race and the Law Review 10 Rutgers Race & L. Rev., No. 2, Pp. 441-629, 2009. San Diego Law Review 46 San Diego L. Rev., No. 2, Spring, 2009. Seton Hall Law Review 39 Seton Hall L. Rev., No. 3, Pp. 725-1102, 2009. Southern California Interdisciplinary Law Journal 18 S. Cal. Interdisc. L.J., No. 3, Spring, 2009. Stanford Environmental Law Journal 28 Stan. Envtl. L.J., No. 3, July, 2009. Tulsa Law Review 44 Tulsa L. Rev., No. 2, Winter, 2008. UMKC Law Review 77 UMKC L. Rev., No. 4, Summer, 2009. Washburn Law Journal 48 Washburn L.J., No. 3, Spring, 2009. Washington University Global Studies Law Review 8 Wash. U. Global Stud. L. Rev., No. 3, Pp.451-617, 2009. Washington University Journal of Law & Policy 29 Wash. U. J.L. & Pol’y, Pp. 1-401, 2009. Washington University Law Review 86 Wash. U. L. Rev., No. 6, Pp. 1273-1521, 2009. William Mitchell Law Review 35 Wm. Mitchell L. Rev., No. 4, Pp. 1235-1609, 2009. Yale Journal of International Law 34 Yale J. Int’l L., No. 2, Summer, 2009. Yale Journal on Regulation 26 Yale J. on Reg., No. 2, Summer, 2009.

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Current index to legal periodicals

Class Wars: The Dilemma of the Mass Tort Class Action

Events over the last year have generated significant questions about how democratic discourse can proceed in a post-truth society where empirical evidence has little persuasive value. Justice Brandeis once famously claimed that the best way to combat pervasive falsehoods and political misperceptions was through “more speech,” but that strategy is built on the assumption that errors arise out of information deficits. As contemporary debate shows, the Brandesian response is ill-suited to a world increasingly built on “alternative facts.” Fortunately, interdisciplinary research not only explains why existing methods of persuasion fail, it also describes how to combat the problems associated with the modern legal and political climate. 
This Article considers the problem of pervasive political misconceptions through the lens of the ongoing debate about the legitimacy of international arbitration. Numerous empirical studies prove that international arbitration (meaning both international commercial (business-to-business) and investment (investor-state) arbitration) offers a fair and unbiased means of resolving complex, high-value legal disputes through sophisticated, highly formal procedures that more closely resemble judicial procedures in commercial courts than domestic arbitration. However, critics routinely ignore this data and continue to question the validity of the procedure. Why? 
This Article draws on empirical and theoretical studies conducted by political scientists, philosophers, psychologists and economists to demonstrate how three phenomenon – sticky defaults, status quo bias and the sovereign prerogative – work in tandem to create enduring but demonstrably incorrect perceptions about the legitimacy of international arbitration. Interdisciplinary research also provides a potential solution in the form of a heuristic known as the Reversal Test, which acts as an objective diagnostic tool to identify the influence of unconscious cognitive distortions such as the status quo bias. Through this analysis, this Article not only addresses one of the core paradoxes in international dispute resolution but also provides intriguing insights into policy debates in other fields.

Truth in a Post-Truth Society: How Sticky Defaults, Status Quo Bias and the Sovereign Prerogative Influence the Perceived Legitimacy of International Arbitration

With growing economic inequality, questions of distributive justice have become increasingly prominent in legal scholarship, particularly public law scholarship. Civil procedure scholarship has been no exception, traditionally addressing such questions under the heading of “access to justice.” And yet, despite the ubiquity of the phrase, discussions of access to justice have tended to focus almost exclusively on how procedural resources and opportunities should be distributed and, accordingly, who should receive any given share of those resources and opportunities. Much less attention has been paid to what, exactly, is being distributed—which specific goods access to justice actually comprises. Perhaps because of this vagueness, proponents of access to justice have coalesced around a fairly stable set of policy positions on a wide range of procedural issues. 

This Article shows that apparent consensus to be much less secure than scholars commonly assume. Only by abstracting from the specific goods associated with access to justice can scholars achieve such widespread agreement about which procedural rules and policies accord with distributive justice. In fact, scholars allude to multiple distinct goods when advocating broad access to justice. Though often treated as interchangeable or even synonymous, those goods, once distinguished, entail potentially conflicting implications for some of the doctrinal and policy issues that currently preoccupy civil procedure scholars, complicating the standard access-to-justice position on each one. Whether a particular policy promotes access to justice and satisfies the demands of distributive justice depends on which specific goods we’re trying to facilitate access to. The unadorned concept of access to justice doesn’t have the fully determinate, unidirectional policy valence that many scholars assume it does. 

The problem, moreover, runs much deeper than just an ambiguity about the aims of civil justice. For the different goods associated with access to justice can be traced to different—and often conflicting—functions of the modern liberal state. Such conflicts are fundamental, going to the core of liberalism, and so are no more likely to be definitively resolved in civil procedure than they are in any other context. That being the case, we should expose and acknowledge the conflicts between different procedural (and political) goals and restructure procedural rulemaking institutions to better negotiate them, rather than imagine that blunt appeals to access to justice alone can determine civil procedure’s proper response to increasing economic inequality. We shouldn’t expect the task of determining the legal implications of economic inequality to be any more straightforward—or any less contentious—in civil procedure than it has been in public law. And public law, for its part, may end up having to make some of the same kinds of difficult trade-offs that civil procedure scholars have been loath to confront.

Distributing Civil Justice

This paper studies the effects of allocation rules on the stability of mass tort class actions. I analyze a two-stage model in which a defendant faces multiple plaintiffs with heterogeneous damage claims. In stage 1, the plaintiffs play a noncooperative coalition formation game. In stage 2, the class action and any individual actions by opt-out plaintiffs are litigated or settled. I examine how the method for allocating the class recovery interacts with other factors -- the shape of the damage claim distribution, the scale benefits of the class action, and the plaintiffs' probability of prevailing at trial and bargaining power in settlement negotiations -- to determine the asymptotic stability of the global class. My results suggest criteria to attorney and courts for structuring and approving efficient allocations plans in mass tort class actions and for evaluating the predominance and superiority requirements for class certification in mass tort cases.

/pdf/allocation-rules-and-the-stability-of-mass-tort-class-2ba5t7o29h.pdf

Allocation Rules and the Stability of Mass Tort Class Actions

Almost all courts and scholars disfavor the use of class actions in mass tort litigation, since class actions infringe on each plaintiff's control, or autonomy, over the tort claim. The Supreme Court, in fact, has strongly suggested that protecting such litigant autonomy is a requirement of due process, and has done so in recent decisions concerning the class action, arbitration, preclusion law, and the Erie doctrine. In this article I argue that protecting litigant autonomy in the mass tort context is self-defeating, and, in the process, rethink basic tenets of procedural due process. Relying on recent property theory, I first show that protecting litigant autonomy in mass tort litigation causes collective action problems that undermine the deterrent effect of the litigation. Thus, protecting a plaintiff's autonomy over the claim leads to the very mass torts the claim seeks to prevent and remedy. Counterintuitively, this tragedy can be avoided by taking away each plaintiff's autonomy over the claim, such as through a mandatory class action. I then use the self-defeating nature of litigant autonomy in the mass tort context to reexamine the law of procedural due process. The result is a revision of what process is "due" that takes each plaintiff's individual interest in deterrence into account and impartially balances competing interests. I conclude that the law of procedural due process should end its preoccupation with the claim, and, in particular, a plaintiff's control over it. Instead, the law of procedural due process should take a context-dependent approach that takes into account the enforcement objectives of tort law and analogous liability rules.

Mass Torts and Due Process

The Erie doctrine governs, among other things, when a federal court sitting in diversity jurisdiction may use a federal procedure that differs from the procedure that would be used in state court. Displacing the state procedure with the federal procedure (or not) may impact the substantive objectives of either state or federal law, but the current Erie doctrine provides little guidance. This article argues that the Erie doctrine is best understood as governing a choice of enforcement defaults. As argued below, the primary function of civil liability is to protect a substantive entitlement to avoid the legal violation, either directly through specific performance remedies or through deterrence. Accordingly, procedures in federal and state court can be understood as default procedures to enforce this substantive entitlement, and these defaults are often abrogated by contract or through legislation. Understood in this way, the Erie doctrine governs when a federal court may abrogate a state enforcement default with a federal one. This article then uses the existing literature on default rules to argue that the Erie doctrine should itself use default rules to force information from both state and federal governments about the relationship of default procedures to substantive policies. In this way federal courts can make better choices between enforcement defaults.

Erie as a Choice of Enforcement Defaults

Deterrence effects under Twombly: On the costs of increasing pleading standards in litigation

The filibuster in the United States Senate effectively imposes a supermajority vote requirement to pass any legislation. Both supporters and critics of the filibuster agree that any filibuster reform would require extraordinary measures. In contrast to this consensus, this Article illustrates a method we call the "conventional option," which allows the filibuster to be reformed by a simple majority of senators at any time using ordinary Senate procedures. As we show below, a majority of senators using the conventional option 1) cannot be filibustered; 2) can act on any day the Senate is in session (not just at the beginning of a new Congress); and 3) does not need to invoke the Constitution. In fact, the Article shows that both the U.S. House of Representatives and the Senate have limited filibustering in the past by using the conventional option described in this Article.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2491815_code819574.pdf?abstractid=2176938&mirid=1&type=2

The Conventional Option

We develop a stylized game theoretic model of litigant behavior to study the effects of increased pleading standards on incentives to engage in illegal activity. Such a model is necessary to build intuition about the potential costs associated with the procedures set forth by the U.S. Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009), which increase the standard of plausibility that lawsuits must meet before being allowed by a judge to proceed to discovery and trial. We show how increasing pleading standards tends to increase illegal activity, and can increase litigation costs. These negative effects should be accounted for when setting a pleading standard. Our results provide a counterpoint to the U.S. Supreme Court’s argument that increased plausibility requirements will decrease the costs of litigation.

https://papers.ssrn.com/sol3/Delivery.cfm?abstractid=2416435

Sergio J. Campos

Papers

Mass Torts and Due Process

Erie as a Choice of Enforcement Defaults

Deterrence effects under Twombly: On the costs of increasing pleading standards in litigation

The Conventional Option

Deterrence Effects Under Twombly: On the Costs of Increasing Pleading Standards in Litigation