Long-shot class actions: Toward a Normative Theory of Legal Uncertainty

Legal Theory

Volumn 8, Issue 3, 2002, Pages 297-311

  Schwartz, Warren F ^a  

^a GEORGETOWN UNIVERSITY LAW CENTER   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 26844467968     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/S1352325202083027h     Document Type: Article

References (11)

1. In re Rhone-Poulenc, 51 F.3d 1293, 1298 (7th Cir. 1995)
2. George Priest; Procedural Versus Substantive Controls of Mass Torts Class Actions, 26 J. LEGAL STUD. 52 (1997)
3. For an excellent review of this literature, see Bruce L. Hay and Kathryn E. Spier, Settlement of Litigation, in 3 THE NEW PALGRAVE DICTIONARY OF ECONOMICS AND THE LAW 442 (1998).
4. See C. Frederick Beckner III and Warren F. Schwartz, Toward a Theory of the “Meritorious Case”: Legal Uncertainty as a Social Choice Problem, 4 GEO. MASON L. REV. 801 (1998).
5. For an excellent technical discussion, see Edi Karni, Attitude Toward Risk, in THE NEW PALGRAVE DICTIONARY OF ECONOMICS AND THE LAW 114 (1998).
6. See Hay and Spier, Attitude Toward Risk note 4, at 442.
7. See Edward P. Schwartz and Warren F. Schwartz, And So Say Some of Us… What To Do When Jurors Disagree, 9 S. CAL. INTERDISC. L.J., 429 (2000); The Challenge of Peremptory Challenges, 12 J.L. ECON.ORG. 325 (1996); Capital Punishment as a Social Choice Problem, 1 LEGAL THEORY 113 (1995); Decisionmaking by Juries Under Unanimity and Supermajority Voting Rules, 80 GEO. L.J. 775 (1992).
8. Rule 48 of the Federal Rules of Civil Procedure provides “unless the parties otherwise stipulate… the verdict shall be unanimous.” If there is any significant division of opinion within the population from which the jury is chosen, the jury is representative of the population and jurors vote sincerely, the unanimity requirement will rarely, if ever, be satisfied. If, however, one outcome is preferred by a large majority of the jury, the minority may accept that outcome. For a general discussion of this phenomenon, see Edward P. Schwartz and Warren F. Schwartz, And So Say Some of Us, What To Do When Jurors Disagree, 9 S. CAL. INTERDISC. L.J. 429, 440 (2000).
9. See Hay and Spier, Rule 48 of the Federal Rules of Civil Procedure provides “unless the parties otherwise stipulate… the verdict shall be unanimous.” note 3, at 442.
10. The settlement-oriented theory contained in the opinion was not advanced by defendants but rather was formulated and introduced on Judge Posner's initiative. Judge Posner further conceded that defendants would not argue that certification of a class action would worsen the settlement environment for them because “such an acknowledgment would greatly weaken them in any settlement negotiations” (51 F.3d at 1296).
11. In re Tectronics Paging Systems, 168 F.R.D. 203, 209-10 (S.D. Ohio 1996). Judge Posner's opinion has received mixed reviews from other courts. Compare Costano v. the American Tobacco Company, 84 F.3d, 743, 746, 752 (5th Cir. 1996) (citing Judge Posner's opinion with approval and concluding its lengthy opinion by stating: “the collective wisdom of individual juries is necessary before this court commits the fate of an entire industry, or indeed the fate of a class of millions, to a single jury”) with Valentino v. CarterWallace, 97 F.3d 1227, 1232 (9th Cir. 1996) (We… do not accept [defendants] invitation to adopt the principles of Rhone-Poulenc as the law of this circuit”).