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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.

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.

The recent “reverse”¹ discrimination decisions by the Supreme Court involving the admissions decision-making policies at the University of Michigan² illustrate the underlying need for private and public entities to justify the need to reach or maintain diversity within an organization. Clearly, the equality of the decision-making methodology and criteria used to obtain and maintain diversity was an issue, but perhaps more pressing was the question of whether such programs were necessary. The issue of parity is at the very center of these cases. If the normal admissions process would have resulted in obtaining the predicted number of minority admissions then there may no longer be a need for such programs. While the university cases have been most publicized recently, matters involving affirmative action plans and governmental programs to enhance diversity (such as minority contractor set-asides) face similar questions of parity.

The McKinney-Vento Homeless Assistance Act (42 U.S.C. 11431 et seq.) establishes basic levels of service, support, and protection for homeless students and families in the United States and specifically prohibits discrimination while ensuring educational rights. According to the 2014 Annual Homeless Assessment Report, homelessness continues to be a pervasive concern, particularly for children under the age of 18 who account for nearly 25% (135,701) of homeless individuals, and youth between 18 and 24 who represent nearly 10% (58,601) of the homeless population. Despite the statutory protections afforded by McKinney-Vento, a number of barriers persist and prevent full enjoyment of the basic rights established by the Act. Overcoming these barriers in the courts has provided some relief, but is insufficient given the limits of McKinney-Vento. Thus, homeless students and families need school leaders who promote social justice and educational opportunities to prepare them for meaningful participation in democratic society. This chapter provides analysis regarding the legal rights of homeless youth, including an overview of significant cases and federal policy updates, and concludes with several recommendations for school leaders to establish clear guidelines and implement procedures to address the educational needs of homeless students.

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.

Following the Supreme Court’s 1988 decision in Basic, securities class plaintiffs can invoke the “rebuttable presumption of reliance on public, material misrepresentations regarding securities traded in an efficient market” [the “fraud-on-the-market” doctrine] to prove classwide reliance. Although this requires plaintiffs to prove that the security traded in an informationally efficient market throughout the class period, Basic did not identify what constituted adequate proof of efficiency for reliance purposes.

Market efficiency cannot be presumed without proof because even large publicly traded stocks do not always trade in efficient markets, as documented in the economic literature that has grown significantly since Basic. For instance, during the recent global financial crisis, lack of liquidity limited arbitrage (the mechanism that renders markets efficient) and led to significant price distortions in many asset markets. Yet, lower courts following Basic have frequently granted class certification based on a mechanical review of some factors that are considered intuitive “proxies” of market efficiency (albeit incorrectly, according to recent studies and our own analysis). Such factors have little probative value and their review does not constitute the rigorous analysis demanded by the Supreme Court.

Instead, to invoke fraud-on-the-market, plaintiffs must first establish that the security traded in a weak-form efficient market (absent which a security cannot, as a logical matter, trade in a “semi-strong form” efficient market, the standard required for reliance purposes) using well-accepted tests. Only then do event study results, which are commonly used to demonstrate “cause and effect” (i.e., prove that the security’s price reacted quickly to news – a hallmark of a semi-strong form efficient market), have any merit. Even then, to claim classwide reliance, plaintiffs must prove such cause-and-effect relationship throughout the class period, not simply on selected disclosure dates identified in the complaint as plaintiffs often do.

These issues have policy implications because, once a class is certified, defendants frequently settle to avoid the magnified costs and risks associated with a trial, and the merits of the case (including the proper application of legal presumptions) are rarely examined at a trial.

Because teacher training is an important component of high-quality early care and education (ECE), states are employing various efforts to increase the credentials of teachers in private ECE centers. In New Jersey, teachers who serve disadvantaged students in the state’s community-based Abbott preschools are under a court mandate to obtain a Bachelor’s degree and Preschool – Grade 3 certification by September 2004 or lose their jobs. This chapter describes a phenomenological study of five teachers’ experiences in attempting to meet that mandate, and offers implications for policymakers to consider when evaluating the overall success of this reform effort.

Since the late 1970s, US employers have increasingly drawn upon legal temporary labor under the H-2 visa to address their labor needs in low-waged sectors. Ever since, what Clark calls migrant labor activism and conflict in the courts has similarly erupted. However, as she argues in this chapter, making “adversarial legalism” the H-2 way of law has also been a story of comparative state formation. For, the litigation largely reflects the structure of labor migration created after the demise of government-run migration. In this regard, activists wrestle with the problems created by the new role of global labor intermediaries in the recruitment process, absolute employer control over hiring and firing, and the coercion produced in the shadow of a now minimally interventionist state. Drawing upon archival research, interviews with legal professionals, and the entire case law docket in this area, this chapter puts “adversarial legalism” under the H-2 visa in its historical and political context.