Class Settlements Under Attack

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Settlements dominate the landscape of class actions. The overwhelming majority of civil actions certified to proceed on a class-wide basis and not otherwise resolved by dispositive motions result in settlement, not trial. This is far from unusual in civil litigation generally, where observations about “the vanishing trial” have become commonplace. Seemingly, the paucity of actual trials should have been integrated into the core structures of the class action. That, however, is not so, and the failure to integrate the fact of settlement into class action law permeates the difficulties now facing the field.

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