The Proper Role for Collateral Attack in Class Actions: A Reply to Allen, Miller, and Morrison

Marcel Kahan, Linda Silberman

Although Professors Kahan and Silberman would applaud a narrowing of the collateral attack remedy created by Matsushita II, as suggested by Miller and by Morrison, they argue that the interpretations offered by those two commentators are inconsistent with what the decision actually says and with its doctrinal rationale. The Ninth Circuit’s reliance on Phillips Petroleum v. Shutts offers no support for a distinction between inadequate representation due to structural deficiencies and inadequacy for other reasons. Moreover, the limiting interpretations offered by Miller and by Morrison would still permit collateral attack in a broad array of cases. In this rejoinder, the authors also respond to particular criticisms from Morrison and Allen, and conclude by noting the unanimity among all of tie commentators that broad collateral attack on class actions is undesirable.

The Amazing Vanishing Second Amendment

Eugene Volokh

I’m deeply flattered that David Williams chose to reply to my Article. His response is thoughtful, gracious, and, most important, direct: It frankly sets forth its conclusion, which is that the Second Amendment is “outdated” and “meaningless.” A part of the Bill of Rights has mysteriously vanished. This is a remarkable proposition. After all, supposedly “[t]he very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.”‘