Jay Tidmarsh’s research while affiliated with Notre Dame College and other places

One of Professor Redish’s many important contributions to legal scholarship is his recent work on class actions. Grounding his argument in the theory of democratic accountability that has been at the centerpiece of all his work, Professor Redish suggests that, in nearly all instances, class actions violate the individual autonomy of litigants and should not be used by courts. This Essay, prepared for a festschrift in honor of Professor Redish, begins from the opposite premise: that class actions should be grounded in the notion of social utility rather than autonomy so that class actions should be used whenever they achieve net social gains. This idea of “superiority” presents some difficulties, not the least of which is the capacity of a court to determine whether a class action is indeed superior to other forms of dispute resolution. The Essay proposes a series of presumptions that give effect to superiority and make an inquiry into superiority easier for courts to conduct. When the class-certification outcomes obtained by these presumptions are examined, they do not result in the near-absolute position against class actions that Professor Redish favors, but surprising convergences in the autonomy and utility approaches emerge.

This Article, prepared for a symposium on class actions, examines the problem of cy pres relief through the lens of ensuring that class actions have an optimal claim structure and class membership. It finds that the present cy pres doctrine does little to advance the creation of optimal class actions, and may do some harm to achieving that goal. The Article then proposes an alternative “nudge” to induce putative class counsel to structure class actions in an optimal way: set attorneys’ fees so that counsel is compensated through a combination of an hourly market rate and a percentage of the net recovery to the class itself. The Article demonstrates that this approach to attorneys’ fees aligns the interests of the class in maximizing its recovery, class counsel in obtaining the most profitable (but reasonable) fee, and society in certifying the class action with the greatest expected net benefit. This approach also eliminates many of the agency-cost problems associated with class counsel failing to attend to the interests of the class. Finally, this approach eliminates most of the incentive for class counsel to seek cy pres relief, although in some cases cy pres relief may still be appropriate.

This Article, prepared for a conference on the Class Action Fairness Act, examines the effect of CAFA on our understanding about the benefits and drawbacks of class actions. The Article describes the vision of class actions that imbues CAFA, and demonstrates how many subsequent developments in the law of class actions — including the Supreme Court’s decisions in Wal-Mart v. Dukes, AT&T Mobility v. Concepcion, and Shady Grove Orthopedics v. Allstate Insurance — have advanced CAFA’s restrictive vision about the role of class actions in modern American litigation. The Article demonstrates that competing visions about the role of class actions lack the broad reach or intuitive appeal of CAFA’s vision. It then suggests that, if the class action is to become a less disfavored procedural device, a more compelling competing vision for class actions must develop. It concludes by suggesting one such vision: class actions should be certified only when they are superior to all other forms for resolving disputes.

This Article addresses an increasingly important question: When, if ever, should foreign citizens be included as members of an American class action? The existing consensus holds that courts should exclude from class membership those foreign citizens whose country does not recognize an American class judgment. Our analysis begins by establishing that this consensus is flawed. Rather, to minimize the costs associated with relitigation in a foreign forum, we must distinguish between foreign claimants who are likely to commence a subsequent foreign proceeding from those who are unlikely to do so; distinguishing between those who come from recognizing and nonrecognizing countries creates needless inefficiency. Using standard tools of economic analysis, we examine the benefits and costs of the consensus rule and compare them to the costs and benefits of other possible rules. In this comparison, the consensus rule tends to perform poorly. As a matter of theory, the most efficient rule for deciding which foreign citizens to include and exclude is evident, but real-world informational constraints frustrate the application of this rule in practice. Because no rule regarding the inclusion and exclusion of foreign citizens is the most efficient in all situations, we propose that courts use rebuttable presumptions: include foreign citizens with claims that are not individually viable and exclude foreign citizens with claims that are viable.

Prepared for a Symposium on the ALI’s Aggregate Litigation Project, this paper 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 paper employs economic analysis to determine what the optimal size of a class action should be. We demonstrate that, in some circumstances, the optimal size of a class is a class composed of all victims, while in other cases, the optimal size is smaller. We further argue that courts should consider optimal class size in determining whether to certify a class, and that there should be no opt-out right when a class is optimally sized. The ALI’s approach does not always lead to the most efficiently sized class actions.

This Article examines the relationship between procedure and substance, and the way in which that relationship affects Erie questions. It first suggests that “procedure” should be understood in terms of process - in other words, in terms of the way that it changes the substance of the law and the value of legal claims. It then argues that the traditional view that the definitions of “procedure” and “substance change with the context - a pillar on which present Erie analysis is based - is wrong. Finally, it suggests a single process-based principle that reconciles all of the Supreme Court’s “procedural Erie” cases: that federal courts can apply their own rules to process a claim as long as, in a costless and outcome-neutral world, those rules do not affect the ex ante value of a claim at the time of its filing.

This essay, prepared for the Symposium on the Judiciary in the Twenty-First Century at Loyola University Chicago School of Law, discusses the circumstances in which courts should permit exit into non-adjudicatory processes such as ADR, mass-resolution facilities, or adjudication before administrative agencies. It begins by arguing that courts must justify their decisions to allow litigation-eligible disputes to exit into other resolution mechanisms. It then proposes three possible justifications for exit: consent of all affected parties, a lack of harm caused to any affected party, or a gain in social utility from using a non-adjudicatory process. The essay then maps those three justifications onto, respectively, ADR, mass-resolution facilities, and administrative adjudication to provide some rules of thumb to guide courts in their determinations whether and when to permit exit.

The constitutional requirement that class representatives and class counsel adequately represent class members is the foundation on which the modern law of class actions is built. The traditional account of inadequate representation -- that representation is inadequate when conflicts of interest exist within the class or between the class and counsel -- is insufficient, for nearly every class action contains within it conflicts of interest that render the class action constitutionally impermissible according to this account. In place of the unrealistic "no conflict of interest" approach to adequacy, this article proposes a "do no harm" approach: Representation is adequate as long as the actions of the class representative and class counsel leave each class member in no worse a position than the member would have occupied had that member retained individual control over his or her lawsuit. The article justifies this principle on doctrinal, philosophical, and economic grounds, and defends it against competing alternatives.

Prepared for a Symposium on Civil Justice Reform, this essay examines the role of the “on the merits” principle in modern American procedure. After surveying the possible meanings of the phrase, the essay critiques its most common understanding due to its economic inefficiency and its lack of strong philosophical support. Relying on the recent work of Amartya Sen, the essay proposes that the principle be replaced with a “fair outcome” principle that melds both “procedural” and “substantive” concerns.