Aggregate litigation across the atlantic and the future of American exceptionalism

Vanderbilt Law Review

Volumn 62, Issue 1, 2009, Pages 1-52

  Nagareda, Richard A ^a  

^a VANDERBILT UNIVERSITY LAW SCHOOL   (United States)

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EID: 62549083027     PISSN: 00422533     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (284)

1. Prominent arguments for civil justice reform in the general interest press highlight several of these differences. See, e.g., WALTER K. OLSON, THE LITIGATION EXPLOSION (1991) (reviewing historical developments behind differences in American and European civil justice systems);
2. id. at 37 (contingency fees);
3. id. at 56-66 (class actions);
4. id. at 280 (punitive damages);
5. id. at 334 (lack of loser-pays rule).
6. Much the same litany appears in discussions of aggregate procedure in Europe directed to the practicing bar. See, e.g., Laurel J. Harbour & Marc E. Shelley, The Emerging European Class Action: Expanding Multi-Party Litigation to a Shrinking World, PRAC. LITIGATOR, July 2007, at 23, 23 (canvassing European developments in aggregate procedure).
7. See, e.g., TILLINGHAST, TOWERS PERRIN, 2006 UPDATE ON U.S. TORT COST TRENDS 3 (2006), available at http://www.towersperrin.com/tp/getwebcachedoc?webc= TILL/USA/2006/200611/Tort-2006-FINAL.pdf (estimating cost of U.S. tort system as $261 billion in 2005).
8. For a critical overview of research on the compensation ratio in the civil justice system, see Charles Silver, Does Civil Litigation Cost Too Much?, 80 TEX. L. REV. 2073, 2075-81 (2002) (discussing "shortcomings associated with efforts to use the compensation ratio ... as a normative standard when gauging the performance of litigation processes").
9. The name of the prominent legal blog site "Overlawyered" captures this view of the plaintiffs' bar. See http://www.overlawyered. com ("[c]hronicling the high cost of our legal system").
10. For a thoughtful statement of this view, see ROBERT A. KAGAN, ADVERSARIAL LEGALISM (2001).
11. One classic statement of this view remains STEPHEN D. SUGARMAN, DOING AWAY WITH PERSONAL INJURY LAW (1989).
12. On the historical connection between the emergence of modern U.S. tort law and earlier, private versions of social insurance for industrial workers, see JOHN FABIAN WITT, THE ACCIDENTAL REPUBLIC (2004).
13. See John Fabian Witt, Bureaucratic Legalism, American Style: Private Bureaucratic Legalism and the Governance of the Tort System, 56 DEPAUL L. REV. 261, 290-91 (2007) (concluding that the private tort bar has "created a massive private administration system with many of the same attributes" as a public administration system).
14. See PRINCIPLES OF THE LAW of AGGREGATE LITIG. § 1.02 cmt. a (Council Draft No. 2, at 12, Nov. 18, 2008) ("All aggregate proceedings combine claims or defenses by many persons for unified resolution, which may be by trial or settlement."). I serve as one of the Associate Reporters for this project.
15. Burgerlijk Wetboek [Civil Code] [BW] arts. 3:305a-b;
16. Harbour & Shelley, supra note 1, at 28.
17. Civil Procedure Rules 1998, S.I. 1998/3132, Part 19, § III.
18. Kapitalanleger-Musterverfahrensgesetz [Act on the Initiation of Model Case Proceedings in Respect of Investors in the Capital Markets], Aug. 16, 2005, BGB1. I at 2437, translated at http://www.bmj.bund.de/kapmug.
19. CODICE DEL CONSUMO [C. CONSUMO] art. 140, translated at http://lawprofessors. type-pad.com/mass-tort-litigation/ 2008/01/italys-new-clas.html.
20. For an overview of the various European approaches to aggregate litigation, see Part II.B infra (table of recent European developments in aggregate litigation);
21. see also CHRISTOPHER HODGES, THE REFORM OF CLASS AND REPRESENTATIVE ACTIONS IN EUROPEAN LEGAL SYSTEMS 51-92 (2008) [hereinafter HODGES, REFORM];
22. Christopher Hodges, Europeanisation of Civil Justice: Trends and Issues, 26 CIV. JUST. Q. 96, 114-20 (2007) [hereinafter Hodges, Europeanisation]. In keeping with the European literature, infra note 14, I focus on aggregate litigation in the context of damage claims against defendant businesses, the analogues to the sorts of antitrust, securities, tort, contract, and consumer claims familiar to U.S. class actions.
23. An important development in Europe beyond the scope of this Article consists of the emergence of "pilot judgments" from the European Court of Human Rights, whereby that body uses the first applicant before it as the procedural vehicle through which to address systematic violations of the European Convention on Human Rights by signatory nations. See Laurence R. Heifer, Redesigning the ECHR: Embeddedness as a Deep Structural Principle of the European Human Rights Regime, 19 EUR. J. INT'L L. 125, 148, 154 (2008) (discussing development of "pilot judgments" and first uses thereof). These pilot judgments have encompassed damage remedies as well as non-monetary remedies against non-complying governments.
24. See id. at 154 (noting troubling possibility of first applicant settling for more favorable "individual damages award over systematic non-monetary remedies").
25. On the potential significance of human rights litigation for the development of class action law in the United States, see Elizabeth J. Cabraser, Human Rights Violations as Mass Torts: Compensation as a Proxy for Justice in the United States Civil Litigation System, 57 VAND. L. REV. 2211 (2004).
26. COMMISSION OF THE EUROPEAN COMMUNITIES, WHITE PAPER ON DAMAGES ACTIONS FOR BREACH OF THE EC ANTITRUST RULES 4 (2008), available at http://ec.europa.eu/comm/competition/antitrust/ actionsdamages/files-wmte-paper/whitepaper-en.pdf;
27. JULES STUYCK ET AL., THE STUDY CENTRE FOR CONSUMER LAW - CENTRE FOR EUROPEAN ECONOMIC LAW, AN ANALYSIS AND EVALUATION OF ALTERNATIVE MEANS OF CONSUMER REDRESS OTHER THAN REDRESS THROUGH ORDINARY JUDICIAL PROCEEDINGS 12-13 (2007), available at http://ec.europa.eu/consumers/redress/reports-studies/ comparative-report-en.pdf.
28. CIVIL JUSTICE COUNCIL, " IMPROVING ACCESS TO JUSTICE THROUGH COLLECTIVE ACTIONS": DEVELOPING A MORE EFFICIENT AND EFFECTIVE PROCEDURE FOR COLLECTIVE ACTIONS: A SERIES OF RECOMMENDATIONS TO THE LORD CHANCELLOR 118-52 (2008), available at http://www.civiljusticecouncil.gov.uk/files/Improving-Access-to-Justice- through-Collective-Acti ons.pdf;
29. see also RACHEL MULHERON, REFORM OF COLLECTIVE REDRESS IN ENGLAND AND WALES: A PERSPECTIVE OF NEED 157-60 (2008), available at http://www.civiljusticecouncil.gov.uk/files/collective-redress.pdf (concluding that "there is overwhelming evidence of the need for a further collective redress mechanism").
30. See, e.g., JOHN H. BEISNER & CHARLES E. BORDEN, ON THE ROAD TO LITIGATION ABUSE: THE CONTINUING EXPORT OF U.S. CLASS ACTION AND ANTITRUST LAW 20 (2006), available at http://www.instituteforlegalreform.com/issues/ docload.cfm?docld=1061 (warning of increasing susceptibility in Europe to the "same litigation abuse crisis that has plagued the United States").
31. ECONOMIST INTELLIGENCE UNIT, COLLECTIVE LITIGATION IN EUROPE 7 (2007), available at http://viewswire.eiu.com/report-dl.asp?mode=fi&fi= 1383861523.PDF (finding "88% [of business leaders surveyed] expect group litigation will become prevalent in the EU within the next ten years.").
32. Brooke Masters, US Law Firm Makes Move on Europe, FIN. TIMES (London), Jan. 3, 2007, at 22;
33. Kellie Schmitt, Quinn Emanuel Jumps at London Opportunity, RECORDER (S.F.), Apr. 23, 2008, available at http://www.law.com/jsp/article.jsp?id=1208947717234.
34. This event yielded detailed descriptions of aggregate litigation across twenty-seven nations, including several outside of North America and Europe. See Conference, The Globalization of Class Actions (2007), http://www.law.stanford.edu/calendar/details/1066/The Globalization of Class Actions/#related-information-and-recordings (listing the respective nations' reports on aggregate litigation).
35. For an important precursor, see Symposium, Debates over Group Litigation in Comparative Perspective: What Can We Learn from Each Other?, 11 DUKE J. COMP. & INT'L L. 157 (2001).
36. See David Gow, Business Chiefs Attack Plan for US-Style Consumer Litigation, GUARDIAN, Mar. 19, 2007, at 28 (quoting EU Competition Commissioner Neelie Kroes);
37. see also Michael Peel, Class Action Lawsuits Could Take Root, FLN. TIMES (London), Oct. 30, 2007, at 4 (describing a " 'growing sense of alarm' in the European business community" and a " 'consensus that the US system is not what we want' ").
38. I draw here on terminology in the U.S. class action literature. See William B. Ruben-stein, Why Enable Litigation? A Positive Externalities Theory of the Small Claims Class Action, 74 UMKC L. REV. 709, 710 (2006) (discussing how class actions can "enable" litigation and generate positive externalities for society);
39. cf. Fabrizio Cafaggi & Hans-W. Micklitz, Collective Enforcement of Consumer Law: A Framework for Comparative Assessment, 16 EUR. REV. PRIVATE L. 391, 401 (2008) (distinguishing between "adversarial and bargaining enforcement models" for consumer litigation in Europe).
40. The leading account of the convergence hypothesis for corporate governance is Henry Hansmann & Reinier Kraakman, The End of History for Corporate Law, 89 GEO. L.J. 439 (2001).
41. For assessments of this prediction, see CONVERGENCE AND PERSISTENCE IN CORPORATE GOVERNANCE (Jeffrey N. Gordon & Mark J. Roe eds., 2004).
42. Hansmann and Kraakman's article title alludes to the title of a then-contemporary suggestion of convergence toward Western-style liberal democracy in the post-Cold-War era. See FRANCIS FUKUYAMA, THE END OF HISTORY AND THE LAST MAN (1996).
43. Significant exceptions in the European literature are the analytical frameworks developed in HODGES, REFORM, supra note 13;
44. Cafaggi & Micklitz, supra note 21;
45. and Hans-W. Micklitz, Collective Private Enforcement of Consumer Law: The Key Questions, in COLLECTIVE ENFORCEMENT OF CONSUMER LAW 11 (Willem van Boom & Marco Loos eds., 2007), though in none of these instances by reference to the notions of regulatory mismatch and anomalous courts featured here.
46. For discussion of the experiments demonstrating finch beak evolution and the central conceptual role of natural selection to the understanding of such evolution, see generally JONATHAN WEINER, THE BEAK OF THE FINCH (1994). I am grateful to Owen Jones for helpful discusklsion of the analogy drawn here.
47. The terminology here builds on the treatment of U.S. class action litigation in Samuel Issacharoff & Richard A. Nagareda, Class Settlements Under Attack, 156 U. PA. L. REV. 1649, 1674-75 (2008).
48. For discussion of mismatches between the forum for litigation and the source of the governing substantive law in the context of federal-state relations more generally, see Samuel Issacharoff & Catherine M. Sharkey, Backdoor Federalization, 53 UCLA L. REV. 1353, 1415 (2006).
49. My attention to the distinction between the word "state" in the U.S. domestic sphere and the same word in international law discourse stems from the U.S. constitutional literature on state sovereign immunity. See Michael B. Rappaport, Reconciling Textualism and Federalism: The Proper Basis of the Supreme Court's Tenth and Eleventh Amendment Decisions, 93 NW. U. L. REV. 819, 821 (1999) (discussing issues raised by the use of the word "state" in the constitutional text).
50. For a similar argument concerning international trade under the auspices of the World Trade Organization and interstate commerce in the early history of the United States, see John O. McGinnis & Mark L. Movsesian, The World Trade Constitution, 114 HARV. L. REV. 511 (2000).
51. See Paul Betts, Sarkozy and Kerviel Chase a French-American Dream, FIN. TIMES (London), Feb. 2, 2008 (Asia ed.), at 7 ("France has become McDonald's' fastest-growing market.").
52. 521 U.S. 591, 621 (1997).
53. For criticism, see Myriam Gilles, Opting Out of Liability: The Forthcoming Near-Total Demise of the Modern Class Action, 104 MICH. L. REV. 373 (2005).
54. On the broader trend toward displacement of conventional civil procedure by provisions in private contracts, see Judith Resnik, Procedure as Contract, 80 NOTRE DAME L. REV. 593 (2005);
55. see also Cafaggi & Micklitz, supra note 21, at 399-401, and accompanying text.
56. See ERIN A. O'HARA & LARRY E. RLBSTEIN, THE LAW MARKET 3-16 (2009) (discussing the emergence of a "law market," whereby governing laws are chosen by private persons and firms rather than mandated by nation-states).
57. The quoted language comes from the title of STUYCK ET AL., supra note 14.
58. This generalizes an observation made in a significant area of aggregate litigation - mass torts - permeated by the drive toward broadly encompassing settlements in one form or another. RICHARD A. NAGAREDA, MASS TORTS IN A WORLD OF SETTLEMENT x-xi (2007).
59. See John C. Coffee, Jr., Class Wars: The Dilemma of the Mass Tort Class Action, 95 COLUM. L. REV. 1343, 1349-50 (1995) (arguing that class actions are "increasingly becoming a shield for defendants").
60. The descriptive observation that aggregation increases settlement pressure by increasing the variance of the litigation and, often, the absolute number of claims pending against the defendant is entirely separate from the normative question whether such pressure is desirable or undesirable.
61. The effect that features like the loser-pays rule might have on this preference remains a question as yet unexplored, no doubt due largely to the recentness of interest in aggregate litigation from European systems that embrace the rule.
62. Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276 U.S. 518, 533 (1928) (Holmes, J., dissenting).
63. In Pennoyer v. Neff, 95 U.S. 714 (1877), the Supreme Court embraced this notion as the centerpiece of its personal jurisdiction jurisprudence for the nineteenth-century United States, emphasizing that "[t]he authority of every tribunal is necessarily restricted by the territorial limits of the State in which it is established." Id. at 720.
64. The advent of long-arm statutes complicated this picture in the twentieth-century, enabling the courts of a given state in ordinary, one-on-one litigation to assert personal jurisdiction over out-of-state citizens. See, e.g., SUZANNA SHERRY & JAY TIDMARSH, ESSENTIALS: CIVIL PROCEDURE 238-39 (2007) (discussing the shift from the territorial conception of Pennoyer to the focus on "minimum contacts" of the defendant with the forum state in International Shoe Co. v. Washington, 326 U.S. 310 (1945)).
65. It is commonplace, moreover, for courts constituted by a particular sovereign to apply the substantive law of another - often, a superior - sovereign. State courts do this with regularity pursuant to the Supremacy Clause of the Constitution. In addition, the Supreme Court has long grappled with questions concerning the extraterritorial application of particular U.S. statutes and, in that setting, has noted the need to "construe ambiguous statutes to avoid unreasonable interference with the sovereign authority of other nations." F. Hoffman-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 164 (2004) (analyzing extraterritorial application of the Sherman Act).
66. A recent $200 million antitrust settlement by British Airways and Virgin Atlantic regarding alleged collusion to set fuel surcharges resolves the claims of ticket purchasers in the United States by way of an opt-out class action in a U.S. court and the claims of purchasers in the United Kingdom via an opt-in procedure there. Airlines Settle U.K., U.S. Suits; International Lawyers Call Class Action a First for Britain, 9 Class Action Litig. Rep. (BNA) 157 (Feb. 22, 2008).
67. See supra note 26 (citing to works on regulatory mismatch).
68. The procedural rules of two states - Mississippi and Virginia - do not authorize class actions. Thomas D. Rowe, Jr., State and Foreign Class-Action Rules and Statutes: Differences from - and Lessons for? - Federal Rule 23, 35 W. ST. U. L. REV. 147, 148 (2007).
69. See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 808-12 (1985) (grounding this holding on differences between absent class members and out-of-state defendants).
70. See Allan Erbsen, From "Predominance" to "Resolvability": A New Approach to Regulating Class Actions, 58 VAND. L. REV. 995, 1005-06 (2005) (characterizing the predominance test as "rel[ying] on a subjective comparison of inherently incomparable factors").
71. See O'HARA & RLBSTEIN, supra note 32, at 45: [The Restatement (Second) of Conflict of Laws] manages to stay young forever by saying nothing and everything at once by accommodating all of the judicial approaches to choice of law. Although the Second Restatement provides presumptive rules, which are favored by more traditional judges, courts can ignore those rules any time in favor of a multifactored analysis, which may indicate that a different state's law should apply. The multifactored analysis takes into account virtually every consideration that courts have examined when choosing governing law. As a result, courts can use the Second Restatement to justify any result they want to reach. This is great for courts, but obviously not for people seeking guidance as to what legal rules govern their conduct.
72. See, e.g., In re Gen. Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 134 F.3d 133, 146 (3d Cir. 1998) ("[O]ur construction of Rule 23 and application to the provisional settlement class is not controlling on the Louisiana court, because it is not bound by our interpretation of Rule 23.");
73. J.R. Clearwater, Inc. v. Ashland Chem. Co., 93 P.3d 176, 180 (5th Cir. 1996) (stating that "the wide discretion inherent in the decision as to whether or not to certify a class dictates that each court - or at least each jurisdiction - be free to make its own determination in this regard").
74. But see In re Bridgestone/Firestone, Inc., Tires Prods. Liab. Litig., 333 F.3d 763, 763-69 (7th Cir. 2003) (finding federal court decertification of nationwide class action to be issue preclusive as to efforts to obtain certification of same nationwide class in state court).
75. In re Bridgestone/Firestone, 333 F.3d at 766-67 (Easterbrook, J.).
76. See 28 U.S.C. § 1332(d)(2) (2000) (conferring federal diversity jurisdiction over class actions with more than $5 million in controversy and minimal diversity of citizenship).
77. See S. REP. NO. 109-14, at 22-27 (2005) (suggesting that federal courts are less inclined toward certification of nationwide class actions);
78. Tobias Barrington Wolff, Federal Jurisdiction and Due Process in the Era of the Nationwide Class Action, 156 U. PA. L. REV. 2035, 2037 (2008) ("The shift to the federal forum ... is expected and intended to alter the outcome in class litigation based on state law.").
79. See Michael Richard Diminio, Sr., Counter Majoritarian Power and Judges' Political Speech, 58 FLA. L. REV. 53, 54 n.1 (2006) ("Judges in thirty-nine states, comprising eighty-seven percent of all judges in the United States, are elected.").
80. See Wolff, supra note 49, at 2041-42 (noting defendants' disinclination to remove when they wish to use the more permissive state court to "bind the entire class to a bargain-basement settlement").
81. See Coffee, supra note 35, at 1354 (describing a reverse auction as a process "with the low bidder among the plaintiffs' attorneys winning the right to settle with the defendant").
82. For further discussion of this problem and the conflicting secondary literature on collateral attacks, see Issacharoff & Nagareda, supra note 26, at 1668-69.
83. One scenario to "trump all the negatives" would consist of a successful collateral attack via a second class action, the members of which consist of the same persons said to have been inadequately represented in the initial class action.
84. The prospect of such an impasse in bargaining provides the conventional economic justification for governmental powers of eminent domain in property law, for example. See STEVEN SHAVELL, FOUNDATIONS OF ECONOMIC ANALYSIS OF LAW 124-25 (2004).
85. The Act generally prohibits federal court injunctions of state court proceedings, but an important exception to this stricture permits such injunctions "to protect or effectuate" a federal court judgment. 28 U.S.C. § 2283 (2000).
86. U.S. CONST. art. IV, § 1 (establishing the obligation of states to accord "full faith and credit" to the judgments of courts in other states);
87. 28 U.S.C. § 1738 (establishing the same obligation of federal courts to accord "full faith and credit" to state-court judgments).
88. See, e.g., HODGES, REFORM, supra note 13, at 51-92 (analyzing court rules in Europe for multiple claims);
89. STUYCK ET AL., supra note 14, at 260-322 (detailing report's findings with respect to collective actions);
90. Harbour & Shelley, supra note 1, at 23-33 (describing emerging procedures for aggregate litigation in Europe);
91. Hodges, Europeanisation, supra note 13, at 114-20 (analyzing "European trends in relation to multi-party representation mechanisms").
92. For further comparison of class actions and consolidations, see Charles Silver, Comparing Class Actions and Consolidations, 10 REV. LLTIG. 495 (1991).
93. For a helpful overview of the widely varying European terminology for what I describe here as "aggregate litigation," see HODGES, REFORM, supra note 13, at 2-3.
94. See ERIK WERLAUFF, CLASS ACTIONS IN DENMARK - FROM 2008 2 (2007), http://www.law.stanford.edu/ display/images/dynamic/events-media/Demark-Legislation.pdf (citing Administration of Justice Act § 254);
95. Harbour & Shelley, supra note 1, at 30-31 (discussing the Danish Class Action Act).
96. See Harbour & Shelley, supra note 1, at 30-31 (reporting effective date of Act as January 1, 2008).
97. Id.
98. WERLAUF, supra note 60, at 3.
99. Harbour & Shelley, supra note 1, at 31.
100. See WERLAUF, supra note 60, at 5 (stating that opt-out proceedings may be used when "the claims cannot be expected to be made in individual actions because of their small size").
101. Id. at 3.
102. Id. at 3-4.
103. Civil Procedure Rules, 1998, pt. 19, § III (U.K.);
104. HODGES, REFORM, supra note 13, at 295-97;
105. CHRISTOPHER HODGES, GLOBAL CLASS ACTIONS PROJECT COUNTRY REPORT: ENGLAND AND WALES 3 (2007), http://www.law.stanford.edu/display/images/ dynamic/events-media/England-Legislation.pdf [hereinafter HODGES, ENGLAND AND WALES];
106. Harbour & Shelley, supra note 1, at 28-29.
107. HODGES, ENGLAND AND WALES, supra note 68, at 3.
108. Id. at 10 (quoting Civil Procedure Rules, 1998, pt. 19.10 (U.K.)).
109. Id. at 2, 10.
110. Harbour & Shelley, supra note 1, at 29.
111. HODGES, ENGLAND AND WALES, supra note 68, at 10.
112. For a recent proposal to move to an opt-out procedure in England, see Mulheron, supra note 15, at 157-61;
113. see also Rachael Mulheron, Justice Enhanced: Framing an Opt-Out Class Action for England, 70 MOD. L. REV. 550, 579 (2007) (contending that "the omission of an opt-out regime from English civil procedure is a failure of immense proportions").
114. HODGES, ENGLAND AND WALES, supra note 68, at 19.
115. Id. at 25.
116. See HODGES, REFORM, supra note 13, at 285-90 (translating Ryhmäkannelaki 444/2007 [Act on Class Actions]);
117. see also Mikko Valimaki, Introducing Class Actions in Finland - An Example of Lawmaking Without Economic Analysis 1 (Working Paper Series, 2007), available at http://papers.ssrn.com/sol3/papers.cfm?abstract-id= 1261623.
118. HODGES, REFORM, supra note 13, at 285.
119. Id.
120. Id. at 286.
121. Id. at 287.
122. See VERONIQUE MAGNIER, CLASS ACTIONS, GROUP LITIGATION & OTHER FORMS OF COLLECTIVE LITIGATION, PROTOCOL FOR NATIONAL REPORTERS, FRANCE 5, 7 (2007), http://www.law.stanford.edu/display/images/dynamic/events-media/ France-National-Report.pdf (citing Article L. 421 of the Consumer Code; Article L. 1114-2 of the Public Health Code; Article L. 142-2 of the Environmental Code).
123. For English translations of these Code provisions, see HODGES, REFORM, supra note 13, at 251-53.
124. MAGNIER, supra note 81, at 6.
125. Id. at 6-8.
126. See id. at 8 (citing Article L. 422-1 of the Consumer Code; Article 452-2, al. 1 of the Monetary and Financial Code).
127. Id. at 14.
128. Id. at 8-9.
129. Id. at 12.
130. Id. at 8.
131. Id. at 12-13.
132. Kapitalanleger-Musterverfahrensgesetz [Act on the Initiation of Model Case Proceedings in Respect of Investors in the Capital Markets], FED. LAW GAZETTE (Germany), Aug. 19, 2005, at 2437, translated at http://www.bmj.bund.de/kapmug;
133. see also HODGES, REFORM, supra note 13, at 299-310;
134. DLETMAR BAETGE, CLASS ACTIONS, GROUP LITIGATION & OTHER FORMS OF COLLECTIVE LITIGATION - GERMANY 7 (2007), http://www.law.stanford.edu/display/images/ dynamic/events-media/Germany- National-Report.pdf;
135. Harbour & Shelley, supra note 1, at 29.
136. Harbour & Shelley, supra note 1, at 29.
137. Id.
138. BAETGE, supra note 90, at 13.
139. Harbour & Shelley, supra note 1, at 29.
140. See BAETGE, supra note 90, at 15 ("Model Proceedings under the Capital Markets Model Case Act start with the application to the State District Court, where the case is pending, for the establishment of a model case procedure.").
141. See id. at 24 ("It is ... up to the trial court to award monetary compensation to each individual plaintiff, based on the outcome of the model proceedings.").
142. Harbour & Shelley, supra note 1, at 29.
143. CODICE DEL CONSUMO [C. CONSUMO] art. 140, translated at Mass Tort Litigation Blog, http://lawprofessors.typepad.com/mass-tort- litigation/2008/01/italys-new-clas.html (Jan. 11, 2008).
144. Id.
145. Id.
146. Id.
147. See Harbour & Shelley, supra note 1, at 28 (citing BW arts. 3:305a, 305B).
148. Id.
149. Id.
150. Id.
151. CAMILLA BERNT-HaMKE, CLASS ACTIONS, GROUP LITIGATION & OTHER FORMS OF COLLECTIVE LITIGATION IN THE NORWEGIAN COURTS 2, 4 (2007), http://www.law.stanford.edu/ display/images/dynasmic/events-media/Norway-National-Report.pdf (citing LOV-2005-06-17-90, Act Relating to Mediation and Procedure in Civil Disputes, 17 June 2005 no. 90);
152. Harbour & Shelley, supra note 1, at 27.
153. BERNT-HAMRE, supra note 106, at 4.
154. See id. at 11 (explaining that, to bring a class action, "several legal persons must have claims or obligations, which have identical or substantially similar factual and legal basis," courts must be able to hear claims with the "same composition and mainly pursuant to the same procedural rules," and "it must be possible to nominate a class representative").
155. Id. at 13.
156. Id. at 15.
157. See id. (explaining that opting out is availing "[i]f the individual claims 'on their own involve amounts and interests that are so small that it must be assumed that a considerable majority of them would not be brought as individual actions' " (quoting The Dispute Act, section 35-7(D)).
158. See HODGES, REFORM, supra note 13, at 263-75 (translating SFS 2002:599 [Group Proceedings Act]).
159. Id. at 263.
160. Harbour & Shelley, supra note 1, at 27.
161. Id.
162. Id.
163. Id.
164. For a thorough history of U.S.-style class actions, see STEPHEN C. YEAZELL, FROM MEDIEVAL GROUP LITIGATION TO THE MODERN CLASS ACTION (1987).
165. See, e.g., George Parker, Class Actions Sought to Shield Shoppers, FIN. TIMES (London), Mar. 5, 2007, at 8 ("[I]f consumers are to have sufficient confidence in shopping outside their own memher state and take advantage of the internal market, they need assurance that if things go wrong they have effective mechanisms to seek redress." (quoting Meglena Kuneva, EU Consumer Affairs Commissioner)).
166. For a more extensive commentary on the contribution of interstate transportation to the integration of the U.S. economy, see MARK H. ROSE, BRUCE E. SEELY & PAUL F. BARRETT, THE BEST TRANSPORTATION SYSTEM IN THE WORLD (2006).
167. Willem van Boom & Marco Loos, Introduction to COLLECTIVE ENFORCEMENT OF CONSUMER LAW 3 (Willem van Boom & Marco Loos eds., 2007).
168. On the prospects for preemption of product liability actions and the debate over the deference, if any, owed by courts to the pro-preemption stance of the Bush Administration, see Mary J. Davis, The Battle over Implied Preemption: Products Liability and the FDA, 48 B.C. L. REV. 1089 (2007);
169. Richard A. Epstein, Why the FDA Must Preempt Tort Litigation: A Critique of Chevron Deference and a Response to Richard Nagareda, 1 J. TORT L. iss. 1, art. 5 (2006), available at http://www.bepress.com/jtl/voll/issl/art5;
170. Richard A. Nagareda, FDA Preemption: When Tort Law Meets the Administrative State, 1 J. TORT L. iss. 1, art. 4 (2006), available at http://www.bepress.com/jtl/vol1/issl/art4;
171. Peter H. Schuck, FDA Preemption of State Tort Law in Drug Regulation: Finding the Sweet Spot, 13 ROGER WILLIAMS U. L. REV. 73 (2008);
172. Catherine M. Sharkey, Products Liability Preemption: An Institutional Approach, 76 GEO. WASH. L. REV. 449 (2008).
173. For broader challenges to the current doctrinal framework for preemption itself, see Roderick M. Hills, Jr., Against Preemption: How Federalism Can Improve the National Legislative Process, 82 N.Y.U. L. REV. 1 (2007);
174. Caleb Nelson, Preemption, 86 VA. L. REV. 225 (2000).
175. On the distinctiveness of the U.S. approach to ex ante regulation and ex post litigation, see Samuel Issacharoff, Regulating After the Fact, 56 DEPAUL L. REV. 375 (2007).
176. See FEDERAL PREEMPTION: STATES' POWERS, NATIONAL INTERESTS (Richard A. Epstein & Michael S. Greve eds., 2007) (collecting articles prepared for American Enterprise Institute conference);
177. Symposium, Ordering State-Federal Relations Through Federal Preemption Doctrine, 102 Nw. U. L. REV. 503 (2008).
178. See Altria Group, Inc. v. Good, 129 S. Ct. 538 (2008) (holding that Federal Trade Commission's regulatory framework for "light" cigarettes does not preempt action under state unfair trade practices statute);
179. Riegel v. Medtronic, Inc., 128 S. Ct. 999 (2008) (holding that state product liability action for defective design and inadequate warning would give rise to a state law "requirement" expressly preempted by federal law requirements imposed via premarket approval of Class III medical device by Food and Drug Administration ("FDA"));
180. Desiano v. Warner-Lambert & Co., 467 F.3d 85 (2d Cir. 2006), aff'd by an equally divided Court sub. nom. Warner-Lambert Co. v. Kent, 128 S. Ct. 1168 (2008) (non-precedential affirmance of lower court decision that FDA approval of prescription drug labeling does not impliedly preempt state tort action under fraud exception to state regulatory compliance defense);
181. Levine v. Wyeth, 944 A.2d 179 (Vt. 2006), cert. granted, 128 S. Ct. 1118 (2008) (No. 06-1249) (considering whether FDA approval of prescription drug labeling impliedly preempts state product liability action).
182. See sources cited supra note 20.
183. Kieron Wood, Judge Raps EU Competition Law Plans, SUN. BUS. POST (Dublin), Mar. 19, 2006, at 27, available at 2006 WLNR 5121216.
184. Meglena Kuneva, EU Comm'r for Consumer Prot., Speech Before the European Parliament: Consumer Strategy 2007-2013 (Mar. 13, 2007), available at http://ec.europa.eu/commission-barroso/kuneva/speeches/verbatim-transcr- speechl3032007-en.pdf, at 8.
185. HODGES, REFORM, supra note 13, at l.
186. See supra note 21 and accompanying text.
187. The Supreme Court has characterized this enabling function as no less than "[t]he policy at the very core of the class action mechanism." Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 617 (1997) (quoting Mace v. Van Ru Credit Corp., 109 F.3d 338, 344 (7th Cir. 1997)).
188. See Theodore Eisenberg & Geoffrey Miller, The Role of Opt-Outs and Objectors in Class Action Litigation: Theoretical and Empirical Issues, 57 VAND. L. REV. 1529, 1532 (2004) ("Optouts from class participations and objections to class action resolutions are rare.").
189. In some European systems, however, a market has emerged for insurance coverage whereby a party may hedge against the risk that a loss on the merits will trigger responsibility for its opponent's legal fees under the loser-pays rule. See MARIE GRYPHON, GREATER JUSTICE, LOWER COST: HOW A "LOSER PAYS" RULE WOULD IMPROVE THE AMERICAN LEGAL SYSTEM, MANHATTAN INST., CIV. JUSTICE REP. No. 11, at 16-18 (2008), available at http://www.manhatan-institute.org/ pdf/cjr-11.pdf.
190. See supra notes 64, 105, 110-11 and accompanying text.
191. On the centrality of variance, and hence of aggregation, to settlement behavior, see Joseph A. Grundfest & Peter H. Huang, The Unexpected Value of Litigation: A Real Options Perspective, 58 STAN. L. REV. 1267, 1268 (2006) (noting that "increases in variance can increase a lawsuit's settlement option value").
192. One commentator traces this view to deeply rooted features of continental legal systems: [C]ivil law nations interpret a class action - even with an opt-out provision -as an infringement of a non-representative plaintiff's right to decide when and how to exercise his or her right to a cause of action. Because the right to an individual cause of action is inviolate and cannot be overcome by arguments of social or judicial efficiency, civil law nations resist a wide rule allowing representative actions.
193. S.I. Strong, Enforcing Class Arbitration in the International Sphere: Due Process and Public Policy Concerns, 30 U. PA. J. INT'L L. 1, 22-23 (2008).
194. See Califano v. Yamasaki, 442 U.S. 682, 700-01 (1979) (characterizing the class action as "an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only").
195. The Court recently reaffirmed this principle. See Taylor v. Sturgell, 128 S. Ct. 2161, 2176 (2008) (rejecting the doctrine of "virtual representation" as a proper exception to the general rule against preclusion of non-parties, for such a doctrine effectively would recognize '"a common-law kind of class action' ... shorn of the procedural protections prescribed in ... Rule 23").
196. Supra note 130.
197. See 521 U.S. 591, 620 (1997) ("Confronted with a request for settlement-only class certification, a district court need not inquire whether the case, if tried, would present intractable management problems, ... for the proposal is that there be no trial.").
198. Id. at 593 ("The Third Circuit's opinion [that each of Rule 23 requirements must be satisfied without taking into account the settlement] bears modification.").
199. Some commentators go further to question the constitutionality, under Article III, of settlement-only class actions. Martin H. Redish & Andrianna D. Kastanek, Settlement Class Actions, the Case-or-Controversy Requirement, and the Nature of the Adjudicatory Process, 73 U. CHI. L. REV. 545 (2006).
200. See, e.g., Amchem, 521 U.S. at 621: [I]f a fairness inquiry under Rule 23(e) controlled certification, eclipsing Rule 23(a) and (b), and permitting class designation despite the impossibility of litigation, both class counsel and court would be disarmed. Class counsel confined to settlement negotiations could not use the threat of litigation to press for a better offer,... and the court would face a bargain proffered for its approval without benefit of adversarial investigation. (citation omitted).
201. See Samuel Issacharoff & Geoffrey P. Miller, Will Aggregate Litigation Come to Europe?, 62 VAND. L. REV. 179 (2009).
202. See supra notes 104-05 and accompanying text.
203. On the cross-listing of publicly traded firms on multiple exchanges, see John C. Coffee, Jr., Law and the Market: The Impact of Enforcement, 156 U. PA. L. REV. 229, 236-42 (2007).
204. See INTERIM REPORT OF THE COMMITTEE ON CAPITAL MARKETS REGULATION x (2006), available at http://www.capmktsreg.org/pdfs/11.30Committee-Interim-ReportREV2.pdf (discussing the reasons for "[t]he loss of U.S. public market competitiveness compared to global public markets").
205. For further analysis of competition among stock exchanges, see Chris Brummer, Stock Exchanges and the New Markets for Securities Laws, 75 U. CHI. L. REV. 1435 (2008).
206. See Coffee, supra note 143, at 245-46.
207. 242 F.R.D. 76 (S.D.N.Y. 2007).
208. Id. at 81.
209. The Vivendi litigation thus fit the description of what has come to be known as "foreign-cubed" or "f-cubed" securities class actions - situations in which "a set of (1) foreign plaintiffs is suing (2) a foreign issuer in an American court for violations of American securities laws based on securities transactions in (3) foreign countries." Morrison v. Nat'l Australian Bank Ltd., 547 F.3d 167, 172 (2d Cir. 2008) (emphasis in original; defining the term "foreign-cubed");
210. see also George T. Conway III, The Rise and (Coming) Fall of F-Cubed Securities Litigation, ENGAGE, Feb. 2008, at 33, available at http://www.fed-soc.org/doclib/20080313-FCubed.Securities. Engage.9.1.pdf (essay by defense counsel in Morrison, using equivalently the term "f-cubed").
211. Vivendi, 242 F.R.D. at 92.
212. See id. at 91 (referencing the required finding under FED. R. CIV. P. 23(b)(3) that a class action must be "superior to other available methods for the fair and efficient adjudication of the controversy").
213. Id. at 107.
214. An influential earlier opinion from the Second Circuit, authored by the iconic Judge Henry Friendly, had cast the inquiry in terms that were, if anything, even more favorable to the encompassing of non-U.S. shareholders in a U.S. court securities class action. See Bersch v. Drexel Firestone, Inc., 519 F.2d 974, 996 (2d Cir. 1975) (calling for the exclusion of non-U.S. shareholders from a proposed class action in a U.S. court only if there exists a "near certainty" that a foreign court would not recognize the resulting class judgment);
215. cf. Morrison, 547 F.3d at 173 (reaffirming Bersch as to the subject matter jurisdiction of U.S. courts over securities fraud claims of foreign shareholders, but not speaking to the issue of class certification). The Vivendi court recognized that intervening case law from the Second Circuit had cast the satisfaction of applicable class certification requirements in preponderance terms. See 242 F.R.D. at 83 (citing In re Initial Pub. Offering Sec. Litig., 471 F.3d 24, 41 (2d Cir. 2006)).
216. For analysis of Vivendi in the European literature, see Andrea Pinna, Recognition and Res Judicata of US Class Action Judgments in European Legal Systems, 1 ERASMUS L. REV. 31, 37 (2008).
217. 242 F.R.D. at 102-03.
218. Id. at 100 (quoting Lautour v. Guiraud, Cass, 1e civ., May 25, 1948, Bull. civ. I).
219. Id. at 101-02.
220. 253 F.R.D. 266 (S.D.N.Y. 2008).
221. Id. at 285-87.
222. For an overview of forum non conveniens limitations in U.S. procedural doctrine, see RONALD A. BRAND & SCOTT R. JABLONSKI, FORUM NON CONVENIENS: HISTORY, GLOBAL PRACTICE, AND FUTURE UNDER THE HAGUE CONVENTION ON CHOICE OF COURT AGREEMENTS 37-73 (2007).
223. For an example of a post-Vivendi dismissal of transnational securities fraud class actions on forum non conveniens grounds, see LaSala v. UBS, AG, 510 F. Supp. 2d 213 (S.D.N.Y. 2007).
224. See FED. R. CIV. P. 23(c)(3), advisory committee's note to 1966 amendments (discussing the problem of one-way intervention that the innovation of the opt-out class action was designed to avoid).
225. See Risk Metrics Group, Securities Litigation Watch, When Opting Out is Really Opting In, http://slw.riskmetrics.com/2007/11/post.html (Nov. 7, 2007) ("A number of large international institutional investors that were excluded from the class definition [in Vivendi] have now started to file individual or group actions in the United States.").
226. For a scholarly treatment of multinational class actions in the securities setting, see Hannah L. Buxbaum, Multinational Class Actions Under Federal Securities Law: Managing Jurisdictional Conflict, 46 COLUM. J. TRANSNAT'L L. 14 (2007).
227. See In re Royal Dutch/Shell Transp. Sec. Litig., 522 F. Supp. 2d 712, 715-16 (D.N.J. 2007) (describing Shell's motions to dismiss non-U.S. claimants from the class action).
228. See Precis Settlement Agreement 1-2 (Apr. 11, 2007), available at http://https://www.royaldutchshellsettlement.com/Documents/ Settlement%20Agreement.pdf (summarizing settlement agreement).
229. See supra notes 104-05, 142 and accompanying text.
230. Id. at 2.
231. See id. at 6-8.
232. See Andrew F. Daughety & Jennifer F. Reinganum, Exploiting Future Settlements: A Signaling Model of Most-Favored-Nation Clauses in Settlement Bargaining, 35 RAND J. ECON. 467 (2004);
233. Kathryn E. Spier, "Tied to the Mast": Most Favored Nation Clauses in Settlement Contracts, 32 J. LEGAL STUD. 91 (2003) [hereinafter Spier, Tied to the Mast];
234. Kathryn E. Spier, The Use of "Most-Favored-Nation" Clauses in Settlement of Litigation, 34 RAND J. ECON. 78 (2003) [hereinafter Spier, Use of MFN Clauses].
235. Spier, Tied to the Mast, supra note 165, at 104;
236. see also Spier, Use of MFN Clauses, supra note 165, at 92.
237. This is not to say that claimants outside the class who might be affected by an MFN clause in a class settlement agreement necessarily would have recourse within the settlement review process, at least under current U.S. doctrine. Even while acknowledging the likely effect of an MFN clause on claimants who had opted out of a class settlement, the D.C. Circuit went so far as to hold that such claimants lack standing to challenge an MFN clause as part of the district court's hearing on the fairness of that settlement. In re Vitamins Antitrust Class Actions, 215 F.3d 26, 28 (D.C. Cir. 2000). Under this view, "the district court's duty [under Rule 23(e)] is to the class members themselves; it lacks the power to conduct a free-ranging analysis as to the broader implications of the proposed settlement agreement." Id. at 30.
238. See Spier, Tied to the Mast, supra note 165, at 106.
239. See Jessica Jones, Bad Blood Over Royal Dutch Fees, AM. LAW., June 2007, at 58 (reporting that the Royal Dutch Shell settlement provides for $47 million in fees to be divided between Grant & Eisenhofer and two allied law firms).
240. This also can be accomplished, to a degree, even when the scope of aggregation corresponds to nation-state boundaries. See supra note 40 (discussing British Airways and Virgin Atlantic settlement).
241. See Press Release, Royal Dutch Shell, Shell Announces Settlement of Reserve-Related Claims with US Investors (June 3, 2008), available at http://www.shell.com/home/content/investor/news-and-library/press-releases/2008/ us-reserves-settlement-06032008.html.
242. Issacharoff & Nagareda, supra note 26, at 1663-68.
243. See Press Release, Grant & Eisenhofer, European Investor Group and Royal Dutch Shell Agree to $450 Million Settlement over Shell's Misstatements of Proven Oil & Gas Reserves (Apr. 11, 2007), available at http://www.lawdragon.com/images/uploads/pdf/grant-royal-4197.pdf.
244. Ironically enough, consensual civil settlement on an aggregate basis actually seems to be faring somewhat better in Amsterdam in recent years than the usual consensual commerce in the red-light district. See Marlise Simons, Amsterdam Tries Upscale Fix for Red-Light District Crime, N.Y. TIMES, Feb. 24, 2008, at A10.
245. This understanding of collateral attacks distinguishes, on the one hand, review by courts other than those of the rendering judicial system via the ordinary process of direct review and, on the other hand, situations in which a lawsuit nominally separate from the underlying class action is channeled back to the rendering court - for example, within the federal judicial system, via a consolidation order by the Judicial Panel on Multidistrict Litigation. The latter scenario presents a collateral lawsuit in the sense of one separate from the class judgment whose preclusive effect it seeks to challenge, but not a case of collateral attack as understood here. The same court that rendered the class judgment ultimately stands to rule on the preclusion defense invoked to shut down the collateral lawsuit before it.
246. See Issacharoff & Nagareda, supra note 26, at 1712-20;
247. see also Richard A. Nagareda, Administering Adequacy in Class Representation, 82 TEX. L. REV. 287 (2003).
248. 472 U.S. 797 (1985).
249. Id. at 811-12.
250. The holding in Shutts effectively blessed the assertion of personal jurisdiction via nationwide, opt-out class actions in the federal courts as well, for those courts must use the same framework for the assertion of personal jurisdiction as the courts of the states in which they sit. See FED. R. CIV. P. 4(k)(l)(A) (generally establishing personal jurisdiction in federal district court on same grounds as counterpart state courts of general jurisdiction).
251. 472 U.S. at 812.
252. Id. (citing Hansberry v. Lee, 311 U.S. 32, 42-43, 45 (1940)).
253. For more extensive treatment of the distinctions drawn in this paragraph, see Issacharoff & Nagareda, supra note 26, at 1678-1700.
254. These two matters are treated in separate subsections of Rule 23. Compare FED. R. CIV. P. 23(a) - (b) (class certification requirements), with FED. R. CIV. P. 23(e) (review of class settlement for fairness).
255. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1997).
256. See In re Diet Drugs Prods. Liability Litig., 431 F.3d 141, 146 (3d Cir. 2005) (holding that "[o]nce a court has decided that the due process protections did occur for a particular class member or group of class members, the issue may not be relitigated," but noting the contrary view in Stephenson v. Dow Chem. Co., 273 F.3d 249 (2d Cir. 2001), aff'd by equally divided Court, 539 U.S. 111(2003)).
257. In one much-debated round of litigation, judges of the Ninth Circuit at various points embraced three markedly different views of collateral attacks. See Epstein v. MCA, Inc., 179 F.3d 641, 649 (9th Cir. 1999) (O'Scannlain, J.) (asking simply whether the rendering court afforded absent class members a "full and fair opportunity" to challenge the adequacy of class representation);
258. id. at 651 (Wiggins, J., concurring) (asking whether representational adequacy was "fully and fairly litigated and necessarily decided" by the rendering court);
259. Epstein v. MCA, Inc., 126 F.3d 1235, 1244 (9th Cir. 1997) (Norris, J.) (permitting the collateral attack on the ground that "[t]o hold otherwise... would be to require absent class members to monitor the proceedings in order to secure their rights to adequate representation," something such persons "are not required" to do).
260. E.g., Devlin v. Scardelletti, 536 U.S. 1, 14 (2002).
261. E.g., FED. R. CIV. P. 60(b).
262. Council Regulation 44/2001, art. 34.1, Jurisdiction and the Recognition and Enforcement of Judgment in Civil and Commercial Matters, 2000 O.J. (L 12) 1 [hereinafter EU Regulation].
263. On the unsuccessful earlier effort to negotiate an international convention on the recognition of judgments through the vehicle of the Hague Conference on Private International Law, see Katherine R. Miller, Playground Politics: Assessing the Wisdom of Writing a Reciprocity Requirement into U.S. International Recognition and Enforcement Law, 35 GEO. J. INT'L L. 239, 257-61 (2004).
264. See RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS: ANALYSIS AND PROPOSED FEDERAL STATUTE § 5(a)(vi) (2006): A foreign judgment shall not be recognized or enforced in a court in the United States if the party resisting recognition or enforcement establishes that... the judgment or the claim on which the judgment is based is repugnant to the public policy of the United States, or to the public policy of a particular state of the United States when the relevant legal interest, right, or policy is regulated by state law.
265. On the grounding of this language in Article 34 of the EU Regulation, see id. § 5 reporters' notes at 78-79.
266. On the relationship between the ALI proposal and the Hague Conference negotiations, see Andreas F. Lowenfeld & Linda J. Silberman, A Different Challenge for the ALI: Herein of Foreign Country Judgments, an International Treaty, and an American Statute, 75 IND. L.J. 635 (2000).
267. RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS, supra note 187, § 5 reporters' notes at 77.
268. Id.
269. In re Alstom SA Sec. Litig., 253 F.R.D. 266, 285-87 (S.D.N.Y. 2008).
270. EU Regulation, supra note 186, art. 36.
271. See Epstein v. MCA, Inc., 179 F.3d 641, 649 (9th Cir. 1999) (O'Scannlain, J.) (evincing a more "restrictive regime").
272. See supra Part II.B.l.b.
273. See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 814-23 (1985) (overturning class certification on choice-of-law grounds).
274. Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983).
275. 9 U.S.C. § 2 (2000).
276. Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 637 (1985).
277. See Jean R. Sternlight, Creeping Mandatory Arbitration: Is It Just?, 57 STAN. L. REV. 1631, 1638-39 (2005).
278. Some sources cast the inquiry in terms of whether statutory rights may be vindicated in the arbitral setting. See, e.g., Kristian v. Comcast Corp., 446 F.3d 25, 37 (1st Cir. 2006);
279. J. Maria Glover, Note, Beyond Unconscionability: Class Action Waivers and Mandatory Arbitration Agreements, 59 VAND. L. REV. 1735, 1764-67 (2006).
280. For elaboration in terms of the contrast in law reform authority between private contracts and public legislation, see Richard A. Nagareda, Aggregation and its Discontents: Class Settlement Pressure, Class- Wide Arbitration, and CAFA, 106 COLUM. L. REV. 1872, 1906-07 (2006).
281. See O'HARA & RIBSTEIN, supra note 32, at 5.
282. On the role of federal banking law in accentuating this tendency, see Samuel Issacharoff & Erin F. Delaney, Credit Card Accountability, 73 U. CHI. L. REV. 157, 159-61 (2006).
283. See Nagareda, supra note 199, at 1900 (discussing in this light a significant California decision, Discover Bank v. Superior Court, 113 P.3d 1100 (Cal. 2005)).
284. See PULP FICTION (Miramax 1994).