Symposium Articles


The Difficult Path from Observation to Prescription

Samuel Issacharoff

While the law of the American workplace presumes that the market for employment operates as formal economic theory would predict, it would be difficult to find an area of law where the governing conceptual model is at such disjuncture from the law as applied. Professor Samuel Issacharoff argues that behavioral law and economics is the latest model that attempts to explain this disjuncture. However, he provides two cautions to the application of this model. First, he notes that the empirical observations that this model offers are amenable to conflicting interpretations and thus possess a limited ability to offer reliable generalizations. Additionally, he explains that even if the empirical foundations were solidified, empiricism itself does not generate normative conclusions.

Human Behavior and the Economic Paradigm at Work

Samuel Estreicher

The Law Review deserves kudos for publishing this Symposium drawn from Articles and Essays presented at last year’s Research Conference on Behavioral Law and Economics in the Workplace, sponsored by New York University’s Center for Labor and Employment Law. Authored by leading scholars in the field, these Articles and Essays promise to spark debate on the implications of the growing, largely experimental behavioral literature for employment law and workplace governance.

How Wrong Are Employees About Their Rights, and Why Does It Matter?

Cynthia L. Estlund

Most employees are terminable at will, yet apparently most believe they only can be fired for cause. That belief persists in the face of a standard at-will disclaimer. In this Essay, Cynthia Estlund explores some causes, consequences, and possible legal responses to that gap between employees’ beliefs and reality. She suggests first that employers, by acting as if they must justify discharges, may foster employees’ erroneous beliefs by contradicting the words of a disclaimer. Whatever its source, the gap is problematic because it allows employers to enjoy both the benefits of employee perceptions of job security and the benefits of employment at will. In principle, switching the default to “for cause” should help bridge the gap. A weak default, however, would be defeated by an at-will disclaimer, and would accomplish little. Employers already act as if the default is “for cause” and disclaim it; employees do not credit that disclaimer. A stronger default, such as a waivable right to for cause protection, holds greater promise. If the standard for waiver is high enough to ensure that employees understand their rights, employers would have to choose between the benefits of employees’ expectations of job security and the benefits of employment at will. This Essay concludes by sketching a case for bringing the law into line with employees’ optimistic beliefs.


Representing the Unrepresented in Class Actions Seeking Monetary Relief

Brian Wolfman, Alan B. Morrison

Class actions are important and useful both to deter wrongful conduct and to provide compensation for injured plaintiffs. In complex cases, however, the existing class action structure falters. In this Article, Messrs. Wolfman and Morrison argue that in “settlement class actions” the current class action rules do not adequately protect class members whose interests do not coincide with those of the class representatives and the class attorneys. Through a survey of recent, prominent settlement class actions, the authors show that the current system does not fairly treat subgroups in a class with respect to matters as diverse as future injury, fee distribution, applicable law, and timing of payments. In response to these problems and others, Messrs. Wolfman and Morrison ultimately urge the adoption of amendments to the class action rules to handle settlement class actions. The effect of these amendments would be twofold: first, to ensure that “unrepresented” class members would be represented by counsel who would have adequate opportunity to champion their interests; and second, to allow a judge handling a settlement class action to evaluate the substantive provisions of a proposed settlement, and to impose or reject certain terms in order to assure fairness within the class, as well as between the class and defendants.

An Empirical Analysis of Rule 23 to Address the Rulemaking Challenges

Thomas E. Willging, Laural L. Hooper, Robert J. Niemic

Professor Edward H. Cooper’s Rule 23: Challenges to the Rulemaking Process, echoing concerns of the Judicial Conference’s Advisory Committee on Civil Rules, encourages investigation of the assumptions that underpin the policies behind Federal Rule of Civil Procedure 23. In this Article, Willging, Hooper, and Niemic respond to Cooper’s call for action and examine these common assumptions supporting Rule 23, presenting their work through seventeen discrete issues raised by Professor Cooper as prevalent in class action litigation. Based on a study conducted by the Federal Judicial Center, this Article provides data and analyses concerning class action cases terminated between July 1, 1992, and June 30, 1994, in four federal district courts.

Better Late Than Never: Notice and Opt Out at the Settlement Stage of Class Actions

George Rutherglen

Whether the Due Process Clause requires individual notice to class action members has not yet been resolved by the Supreme Court. Under the literal terms of Rule 23, however, courts currently require early individual notice in (b)(3) class actions, while leaving notice to the discretion of the trial court in (b)(1) and (b)(2) actions. In this Article, Professor Rutherglen questions the difference in procedural protections afforded to (b)(3) class members, on the one hand, and (b)(1) and (b)(2) class members, on the other. Arguing that effective notice need not meet the rigorous standard of early individual notice in (b)(3) class actions, Professor Rutherglen suggests a new rule that would give class members the right to receive individual notice later in the proceeding, and, at least for (b)(3) class members, the right to opt out at the settlement stage. Such a rule would better protect class members because it would provide notice at a time when information about the merits of the claim is more readily available. It also would empower class members to register their dissatisfaction with the performance of the class attorney by opting out. Where previous scholarship emphasizes the procedural dimensions of notice and the right to opt out under the Due Process Clause, Professor Rutherglen emphasizes the substantive aspects of the right to opt out. He stresses the importance of making substantive changes in the law that would provide for better management of both large class actions and related individual claims.

Beyond the Class Action Rule: An Inventory of Statutory Possibilities to Improve the Federal Class Action

Thomas D. Rowe, Jr.

This Article surveys several areas in which legislation might enhance the utility of federal class actions. It does not suggest a statutory form of class action like statutory interpleader, but it takes initial inspiration from the interpleader statutes’ treatment of subjects beyond the joinder device itself—subject-matter jurisdiction, venue, personal jurisdiction, and antisuit injunctions. The matters on which legislation might be most useful are supplemental jurisdiction, to overrule the limiting holding of Zahn v. International Paper Co. with some possible parallel broadenings of supplemental jurisdiction for nonclass contexts; and authority to enjoin state-court proceedings that could substantially interfere with the conduct of a federal class action. The Article omits treatment of choice-of-law issues, which are the subject of another contribution to this Symposium. Beyond areas suggested by the interpleader statute, the Article discusses some issues of substance-specific procedural rules and the problems posed by global settlement funds. Aside from particular substantive fields such as securities-fraud litigation, federal legislation dealing with class actions does not seem likely for the present. While some statutory measures could be helpful, and others of a broader nature such as authorization or trial in addition to pretrial proceedings after transfer and consolidation could be useful in class as well as nonclass litigation, the main focus for any class action changes belongs on Rule 23 itself and not on legislation.

Individual Justice and Collectivizing Risk-Based Claims in Mass-Exposure Cases

David Rosenberg

In this Article, Professor Rosenberg discusses the perceived problem of Individual justice in collectivized adjudication of mass-exposure cases. He focuses on risk based claims—i.e., those claims predicated on exposure to a tortiously imposed risk, rather than on actual harm and loss—to argue for greater collectivization. Finding that standard procedural analyses are deficient, Professor Rosenberg calls for consideration of collectivization from the perspective of the deterrence and compensation policies underlying tort law generally and risk-based claims specifically. He demonstrates that deterrence offers the strongest—if not only—justfication for such claims, and that collectivization enhances the deterrence goal in mass-exposure litigation. In addition, Professor Rosenberg explains that collectivization also promotes individual justice by providing plaintiffs with the levels of compensation and insurance that they would rationally select on their own, and that collectivization is consistent with objective standards used to determine both liability and damages in tort law. Based on this analysis, Professor Rosenberg concludes that if allowed to choose the process for adjudicating and settling mass-exposure cases, individuals would select mandatory collectivization.

Individuals Within the Aggregate: Relationships, Representation, and Fees

Judith Resnik, Dennis E. Curtis, Deborah R. Hensler

Over the past decades, aggregate litigation has become more common; through various statutory, rule-based, and informal means, judges and lawyers consolidate large groups of individual litigants and claims. The paradigm of a class action, however, continues to dominate the literature, and with it, the assumption that a single set of lead lawyers represent all of the plaintiffs in the assembled group.

This article addresses the problems raised when, in contrast to that paradigm, aggregation brings together mass tort plaintiffs, some of whom come with individually-retained plaintiffs’ attorneys (IRPAs), who perform tasks in addition to those done by a court-appointed plaintiffs’ steering committee (PSC). Our central questions are about the roles of the many lawyers within the aggregate and the potential for policymakers to use procedural tools and the law of attorneys’ fees to structure incentives to enhance the experience of individual litigants within the aggregate. Animating our interest is the view that, in addition to effectuating outcomes, litigation is also a means by which to express political and social relationships. What occurs within an aggregate formed for adjudicatory purposes is of moment for the polity.

Underinclusive Class Actions

Nancy Morawetz

In recent years, there has been much case law and scholarly writing on the problems associated with broadly defined classes in the class action context. Here, however, Professor Morawetz discusses the complex issues resulting from class definitions that are drawn too narrowly, rather than too broadly. Throughout the article, Professor Morawetz focuses on the plight of those individuals who are excluded from class definitions and the institutional structures that may discourage broad class definitions under particular circumstances. Professor Morawetz concludes by offering proposals that will limit the number of classes that are drawn too narrowly by imposing greater responsibility on attorneys and the courts for reviewing class definitions for narrowness.