Colloquium on Current Issues in Complex Litigation

The Colloquium on Current Issues in Complex Litigation offers law students and faculty an opportunity to read and discuss cutting-edge scholarship in the area of complex litigation, typically authored by non-UT faculty members. The Colloquium meets each week during the semester, alternating between seminar and colloquium formats. During the colloquium format meetings, the students will convene with the instructors and all interested faculty for an intensive two-hour exploration of the speaker’s paper with its author. The seminar format meetings are open only to the enrolled students.

Events for Fall 2019

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September 24, 2019 Tuesday

JON 6.206 (Susman Academic Center, The Judge William W. and Margaret R. Kilgarlin Chambers)
3:45pm - 5:45pm

Moderators:

Colloquium on Current Issues in Complex Litigation -- Teddy Rave (University of Houston)

Speaker:

Teddy Rave
George A. Butler Research Professor and Associate Professor of Law, University of Houston Law Center

"It's Good to Have the 'Haves' on Your Side: A Defense of Repeat Players in Multidistrict Litigation" (with Andrew D. Bradt) -- forthcoming Georgetown L. J. 2019

ABSTRACT

Repeat players in multidistrict litigation (MDL) get a bad rap. When thousands of cases from all over the country are consolidated for pretrial proceedings, it's no wonder that the judge assigned to manage the litigation picks experienced lawyers to lead the effort. But critics argue that the small group of elite lawyers who show up again and again in leadership positions on the plaintiffs’ side of MDLs can collude with each other and with repeat players on the defense side to restrict competition and shape the rules of the game to their advantage—all to the detriment of the one-shotter clients that they represent. Those criticisms have gotten louder as MDL has grown to make up more than one-third of the federal civil docket and encompass some of the nation’s largest controversies, such as the opioid epidemic, the BP oil spill, the NFL concussion litigation, and many defective product cases. In this Article, we challenge this narrative, drawing on Marc Galanter’s seminal explanation for why the haves” come out ahead in litigation. Although the risks they pose are real, we argue that repeat players add significant value when they represent one-shotter plaintiffs, and that value may be worth running the risks. We show how MDL’s unique structure—its formal commitment to individualism but functional operation as a tight aggregation—allows repeatplayer plaintiffs’ lawyers to “play for rules” more effectively than either the class action or traditional one-on-one litigation. And with potential reforms to MDL procedure on the agendas of both the Advisory Committee on Civil Rules and Congress, we urge policymakers and scholars not to lose sight of the significant benefits to plaintiffs of having repeat players on their side.

It's Good to Have the "Haves" on Your Side: A Defense of Repeat Players in Multidistrict Litigation (with A. Bradt) -- forthcoming Georgetown LJ 2019

October 8, 2019 Tuesday

JON 6.206 (Susman Academic Center, The Judge William W. and Margaret R. Kilgarlin Chambers)
3:45pm - 5:45pm

Moderators:

Colloquium on Current Issues in Complex Litigation -- Sean Farhang (Berkeley)

Speaker:

Sean Farhang
Elizabeth Josselyn Boalt Professor of Law, Berkeley

"Politics, Identity, and Class Certification on the U.S. Courts of Appeals" (with Stephen B. Burbank)

ABSTRACT

This article draws on novel data and presents the results of the first empirical analysis of how potentially salient characteristics of Court of Appeals judges influence precedential lawmaking on class certification under Rule 23. We find that the partisan composition of the panel (measured by the party of the appointing president) has a very strong association with certification outcomes, with all-Democratic panels having more than double the certification rate of all-Republican panels in precedential cases. We also find that the presence of one African American on a panel, and the presence of two females (but not one), is associated with pro-certification outcomes. Contrary to conventional wisdom in the scholarship on diversity on the bench, such diversity may be consequential to lawmaking beyond policy areas conventionally thought to be of particular concern to women and racial minorities.

Class action doctrine is a form of trans-substantive procedural law that traverses many policy areas. The effects of gender and racial diversity on the bench, through making more procertification law, radiate widely across the legal landscape, influencing implementation of consumer, securities, labor and employment, antitrust, prisoner’s rights, public benefits, and many other areas of law. The results highlight how the consequences of diversity extend beyond conceptions of “women’s issues” or “minority issues.” The results also suggest the importance of exploring the effects of diversity on trans-substantive procedural law more generally.