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All clients are to some extent subject to their attorney's construction of their interests. This state of affairs reaches the extreme in the case of the class action because the class action permits masses of individual claims to be combined in one proceeding to promote efficiency and solve collective action problems. Class action scholars have long debated the role of class members without conclusion. The doctrine on whether and when the class member is considered a “party” to the litigation is incoherent. Neither courts nor commentators are clear on limits of the ethical duty of class counsel – does it run to individual class members or to the class as a whole? And if such a duty runs to the class as a whole, is the class an entity, like a corporation, or an aggregation of individuals each of whom is entitled to enforce class counsel's attorney–client obligations?

In recent years, the European Commission and various Member States, citing increasingly integrated markets and higher levels of cross-border activity within the European Union (“E.U.”), have called for the adoption of effective collective redress mechanisms for victims of violations of E.U. law. Although many Member States have already adopted collective action procedures under national law, these procedures have been ineffective in stimulating private enforcement of E.U. law and are often divergent in their approach to consolidating claims. E.U. lawmakers, after a lengthy period of investigation and study, have identified a set of guiding principles for the Member States to use in enacting new collective redress procedures within their national systems. The studies and papers solicited from the public during the Commission’s deliberations are explicit in their rejection of the U.S.-style opt-out class action mechanism. In their effort to avoid similarly calamitous results, European lawmakers propose that Member States adopt “opt-in” class actions, while rejecting many of the economic incentives that some believe lead to filing nonmeritorious claims, such as punitive damages and contingency fee arrangements. The European proposal is unlikely in the authors’ view to stimulate private enforcement of European law or increase victims’ access to compensation, given the flaws inherent in the opt-in class action device. Instead of looking to adopt a “U.S.-lite” approach to victim redress which is fundamentally incompatible with many judicial systems within the E.U., the authors propose that Europeans consider adopting a regulatory administered compensation system, modeled after such U.S. examples as the Securities and Exchange Commission Fair Funds and the September 11th Victim Compensation Fund. The authors also propose that regulatory administered funds can provide more effective and efficient restitution to victims than traditional litigation.

In class action antitrust litigation, the standards for acceptable economic analysis at class certification have continued to evolve. The most recent event in this evolution is the United States Supreme Court’s decision in Comcast Corp. v. Behrend, 133 S. Ct. 1435 (2013). The evolution of pre-Comcast law on this topic is presented, the Comcast decision is thoroughly assessed, as are the standards for developing reliable economic analysis. This article explains how economic evidence of both antitrust liability and damages ought to be developed in light of the teachings of Comcast, and how liability evidence can be used by economists to support a finding of common impact for certification purposes. In addition, the article addresses how statistical techniques such as averaging, price-dispersion analysis, and multiple regressions have and should be employed to establish common proof of damages.

In 2009, the Third Circuit decided Hydrogen Peroxide, which announced a more rigorous standard under Federal Rule of Civil Procedure 23(b)(3) for assessing whether a putative class could establish antitrust injury. Earlier this year, the Supreme Court decided Comcast v. Behrend, a case that carries potentially broad implications for both antitrust cases and Rule 23(b)(3) class actions generally. A review of the case law starting with Hydrogen Peroxide and continuing through Comcast and its progeny reveals the new rigor in antitrust class action decisions and suggests what the future may hold, including the type of arguments that may provide defendants the most likely chance of defeating class certification. After Comcast, rigor under 23(b)(3) can no longer be avoided in assessing all class actions questions, and courts should now apply Daubert fully in the class setting concerning both impact and damages. Courts should also closely evaluate plaintiffs’ proposed methodologies for proving impact to determine if they apply to each class member. Finally, courts will inevitably have to determine how rigorously to scrutinize experts’ damages methodologies and whether Comcast requires or suggests more scrutiny in assessing common evidence for measuring damages.

This study investigates the relation between lawsuit attributes that support an inference of fraud and the probability and the size of securities lawsuit settlement. A sample of 607 securities lawsuits between 1996 and 2006 is used in the analysis of the probability of settlement and a subsample of 261 lawsuit settlements is used in the analysis of the size of settlement. The empirical results indicate a positive association between the probability of a settlement and accounting irregularity, SEC enforcement action and stock offer. Accounting irregularity and SEC enforcement action are also documented to be positively related to the size of the settlement. The results imply that a stock offer supports a strong inference of fraud and the presence of accounting irregularity and SEC enforcement action in a lawsuit filing strengthens the fraud allegation and increases the likelihood of a settlement. The findings also suggest that the stronger the inference of fraud, the greater the size of the settlement. The results of this study add to our understanding of the determinants of securities lawsuit settlement. Studies using securities litigation as a proxy for fraud can use the results of this study to distinguish between fraud-related and nonfraud-related lawsuits.

At the turn of the twentieth century, various Socialist parties vied for a place in the American political system, making alliances where possible and convenient with elements of organized labor. Robert Franklin Hoxie, an economist at the University of Chicago whose principle contributions lay in his writings on the labor movement, wrote a series of essays in which he scrutinized the activities of the Socialist Party of America as it appeared to be at the time poised to become a viable force in American politics. This essay examines Hoxie’s writings on the conventions of the Socialist Party within the context of the political dynamic of the period and reveals his interpretations of events based on contemporary accounts and first-hand observations.

This article responds to James Keyte, Paul Eckles, and Karen Lent’s article “From Hydrogen Peroxide to Comcast: The New Rigor in Antitrust Class Actions” (“The New Rigor”). It argues that The New Rigor offers valuable strategic advice to defense counsel – and insight into defense counsel’s strategic thinking – but is much less effective as an objective statement of the law or a normative argument for legal reform. In the parlance that I adopt, The New Rigor succeeds in the role of coach but much less so in the roles of commentator and critic.

In antitrust class-action litigation, courts are increasingly unlikely to accept the presumption that all class members were harmed by price-fixing among a group of firms or by exclusionary behavior by a single firm. Econometric methods typically applied in antitrust and other settings estimate the average effect of the challenged conduct, but do not inform impact for individual class members. We present classwide econometric methods and statistical tests for detecting the existence (or lack thereof) of common impact and determining what proportion (if any) of the proposed class suffered injury in many class actions. We conclude that econometric tools can meaningfully inform the legal process, even when courts demand proof of common impact.

This chapter focuses on policy efforts to improve college access in India and Brazil, which utilize affirmative action in higher education for historically marginalized groups. We compare structural factors impacting access to higher education for marginalized groups in India and Brazil, placing these factors in their respective historical contexts. We apply the concepts of intersectionality and interest convergence from critical race theory (CRT) not only to draw attention to how race, caste, and socioeconomic status converge to affect access for historically marginalized groups but also to further an understanding of how elites can maintain their hegemony even in the face of policies intended to achieve social justice.