William B. Rubenstein Harvard Law School Abstract Although the phrase private attorney general is commonly employed in American law, its meaning remains elusive. The concept generally serves as a placeholder for any person who mixes public and private features in the adjudicative arena.
Full Answer
Legislatures create private attorneys general by statute, but before they did and when they have not, courts have created them by judicial decision, and executive agencies by fiat. Congress creates private attorneys general, but so do state legislatures, state courts, and state administrative agencies. The phrase is an integral part of the doctrine ...
May 17, 2004 marked the fiftieth anniversary of the Supreme Court's decision in Brown v. Board of Education.' This precise day also marked the sixty-first anniversary of the Supreme Court's first use of the phrase "private attorney general." For about three decades after this initial 1943 appearance, the private attorney general concept surfaced only occasionally in the legal literature. Starting in the 1970s, however, its presence became quite regular, and that regularity has escalated steadily to the present: on average, during the past fifteen years, every single workday, somewhere in the United States, some judge has written a legal opinion or some scholar has penned an article invoking the private attorney general concept.
In its single most important decision about private attorneys general, the United States Supreme Court ruled that the Constitution necessarily restrains the concept, while simultaneously implying that courts of equity nonetheless retain inherent powers to propagate it.
Stephen Yeazell’s pathbreaking study of the history of group litigation revealed how disparate societies have shaped the rules of group litigation to meet their own needs. Professor Yeazell thereby demonstrated that procedural rules are socially contingent rather than universal in nature. In this Essay honoring Steve, I transform that lesson into a new approach to joinder rules. Specifically, I argue that if joinder rules arise out of specific social situations, then the simplest approach to joinder is to adopt a default rule calling for the shape of litigation to reflect the shape of the social activity that gave rise to the litigation. Labeling this concept “social loyalty,” I argue that it provides a new way of identifying what cases ought to be adjudicated in the aggregate and a new defense of their aggregation.
Class action law is built on a model that assumes a large group of individuals have similar legal claims of such small value that no one of them has the incentive or ability to litigate alone. Rule 23 resolves that collective action problem by enabling one class member to represent the group, with a common fund fee award sharing the costs across the class. The Constitution guarantees class members the options of opting out (exit) or objecting (voice), but given the small stakes, most do nothing (loyalty). While elegant, this model does not capture the reality of all class suits. In many cases, some class members have significant enough legal claims that they are capable of litigating alone. The group dynamics accordingly change, with everything turning on the decisions of the large claimants: in some securities cases, they step forward to perform a monitoring function (voice) and often they simply remain passive (loyalty), but the central question is whether they will opt out and litigate separately in the hopes of maximizing their recovery (exit). The risk that they might deters defendants from settling the class’s small claims, lest they then have to litigate the large claimants’ valuable claims. But the risk simultaneously creates an opportunity: if the class could present a united front, a defendant would likely pay a premium to settle the whole package of claims. Heterogeneous classes can therefore suffer a problem akin to a prisoner’s dilemma: every class member might be best off if they could work together, but lacking a mechanism to do so, coordination costs render the option elusive. The tragedy of this commons is that, built on a different template, class action law offers class members only the three options of exit, voice, or loyalty. In this Article, we offer heterogeneous class members a fourth option: cooperation. Our proposed mechanism for harnessing claimants’ cooperative instincts is a new form of class certification that we call “negotiation class certification.” Under this approach, class members would work together to generate a metric for distributing a lump sum settlement across the class. They would then ask the court to certify a “negotiation class” and to direct notice to the class members informing them that counsel will negotiate a lump sum settlement and that, if achieved, the lump sum amount would be put to a vote, with a supermajority vote binding the class; the notice would also explain the distributional metric. Any class member that did not want to bind itself to either the distributional metric or the supermajority voting process could opt out. By establishing the contours of the class prior to settlement discussions, negotiation class certification would provide the defendant with a precise sense of the scope of finality a settlement would produce, hence encouraging a fulsome offer. The proposal is a novel use of Rule 23, but it is, in many ways, a less ambitious one than certification of a settlement class, although the latter approach, controversial at its inception, has been a “stock device” in class action practice for nearly a quarter century. And while novel, negotiation class certification is consistent with the requirements of both Rule 23 and the Constitution. Indeed, engaging large class members in the settlement negotiation process ex ante improves on a system that delegates that authority to agents and involves the class only ex post.
Cited as persuasive authority in more than 600 federal and state court decisions, Newberg on Class Actions provides comprehensive, step-by-step coverage from pretrial through final resolution. The text focuses on the benefits of the class action, particularly in achieving judicial economy and in providing court access to small claimants who would otherwise be without judicial remedy. Newberg discusses fundamental characteristics, evolving controversies, and applying a theoretical framework to various areas of the law. It examines strategy, technique, agreements and settlements, torts, fees, constitutionality, and damages, and provides detailed analysis of various types of class actions involving: Antitrust Bankruptcy Consumer credit and fraud Intellectual property Shareholder derivative suits And more
Using the question-and-answer format common to all ACLU handbooks, this book makes clear how to take advantage of the laws designed to secure the rights of people who are HIV positive. The authors have divided the book into four sections: the disease itself and the related testing, public health, and confidentiality issues; day-to-day issues involving insurance, family law, and healthcare decision-making; discrimination in housing and work; and AIDS in prisons, schools, as a factor in immigration, and among IV drug users.
From 1997-2007, Professor Rubenstein taught at UCLA School of Law; he was awarded the 2001-2002 Rutter Award for Excellence in Teaching at UCLA. While at UCLA, Professor Rubenstein founded the Williams Institute on Sexual Orientation Law and Public Policy. Professor Rubenstein joined the Harvard faculty in 2007;
Class counsel may directly profit on time investments in two ways: by billing lawyers at market rates though paying those lawyers less and by receiving multiplied fee awards. Those same attorneys in those same situations may also recover their costs but courts may not — or at least do not — permit the attorneys either to mark up their costs or to receive cost multipliers. As cost profits are rarely even debated, there is no good defense of why they are unavailable, but one assumes that courts are less comfortable awarding attorneys a markup on their copying machine than they are for their legal work. The assumption that costs cannot be directly profitable appears therefore to belittle costs, relegating them to a secondary position in the fee and cost award analysis and treating them as something of a tagalong or afterthought. Our goal in this Article is to give costs their due. We describe current jurisprudence, demonstrating how, given a choice between investing profitable time or reimbursable costs, profit-maximizing attorneys will find time investment more attractive than cost investment. We then explore the effects of this bias, showing that because cost investments are not directly rewarded, profit-maximizing attorneys will predictably (1) avoid certain cases; (2) select suboptimal modes of proceeding within cases they do bring; and then (3) settle those cases prematurely. Assuming that conclusion is unfortunate, we consider and propose mechanisms for remedying it. While our proposals are initial and therefore tentative, our commitment to the project of centering costs is not: it is grounded in the belief that the legal system’s anti-cost-investment bias impedes access to justice for individuals whose claims can be established only with substantial cost investments by entrepreneurial lawyers. Centering costs — and considering measures as conventionally discouraged as permitting third parties to profit from cost investments — has the potential to serve a larger public good.
Class actions are among the most public forms of civil litigation, especially because a judge must review and approve a proposed class settlement following public notice and a public hearing. Ironically, however, a veil of secrecy can fall over class action litigation the moment the judge signs off on the agreement and ultimately, little information is available about how many class members actually received compensation and to what degree. This lack of transparency is especially troubling because of evidence that aggregate payments in class settlements sometimes constitute a mere fraction of the compensation fund extolled by the parties at the time of settlement review. This paper examines the extent to which claiming data are available and recommends ways to increase transparency in this area. We reviewed the official court files in a sample of 31 class action settlements and we also made direct inquiries to the judges, lawyers, and settlement administrators in another set of 57 cases. Searching through the case files and communicating with the participants, we were able to gain access to data in fewer than one of five closed cases. Despite the significant time and effort we put into the task, the final outcomes of four of five class action cases were beyond our discovery. It is not that the data are non-existent - claims administrators or parties certainly have them - it is, rather, that they are secreted away. The outcomes of publicly approved settlements lie locked in private files. We argue that this is a problem for three reasons: because the case outcomes might not be all that they purport to be; because the lessons that they could teach - for example, about which approaches work best - are lost to secrecy; and because the public record is unnecessarily incomplete and public access unnecessarily thwarted. We end the paper by proposing a set of solutions, including requiring parties to report back to the court on the final claiming data, publicizing this data, and creating a central repository for it.