In 1991, Professor Judith Resnik argued that the federal courts no longer decided “cases” but instead managed “litigation.” An international marketplace and a broad-based consumer society have made the litigation of mass injuries an increasingly normal part of the landscape of civil justice. Over the past four decades, complex litigation has earned tremendous attention from legislators, practitioners, judges, and scholars, as lawyers have debated intensely whether civil justice in the United States needs sweeping reform. As evidenced by the Federal Judicial Center’s Manual for Complex Litigation, an increasingly indispensable text for the sophisticated litigator, complex litigation has become its own discipline. Lawyers who hope meaningfully to understand and successfully to practice in sophisticated litigation have to understand how this system operates, how it builds upon but also modifies basic procedural doctrine, and how it impacts public regulation through private litigation.
This course will study some of the most important issues in complex litigation. It will focus primarily on class actions but will address other methods of aggregating claims as well. Through the study of class actions and other forms of aggregate litigation, I am hopeful you will understand the key roles that managerial judges and judicial case management play in the administration of large-scale civil justice in the United States. The course will also study jurisdictional assignments in complex litigation, how remedies form and evolve in complex cases, and how discovery proceeds in these lawsuits. A huge array of confounding theoretical and doctrinal problems plague aggregate litigation. To my mind, they result from four questions: How can a lawsuit legitimately dispose of a person’s claim if that person has not consented to join the litigation? How can procedural doctrine ensure that the incentives of lawyers prosecuting class actions remain consistent with the incentives of the people they are supposed to represent? How can courts manage cases involving thousands or even millions of cases, to ensure that parties have meaningful opportunities to litigate claims and defenses, and to ensure that extra-legal considerations like cost and risk thresholds do not distort litigation decisions? Can private civil litigation properly discharge a regulatory function?
We will spend most of the first 7-8 weeks inquiring into how class action doctrine attempts to answer these questions, and evaluating whether it does so successfully. For the last third or so of the semester, we will turn to other techniques of claim aggregation and ask whether they succeed where class action doctrine fails, and vice versa. Throughout, students will learn about important procedural issues – forum assignment, jurisdictional challenges, discovery regulation, and so on – that arise in complex cases.