Volume 156 – University of Pennsylvania Law Review

VOLUME 156, ISSUE 6 JUNE 2008

ARTICLES

Commentary On Class Settlements Under Attack

CATHERINE T. STRUVE

Like the supporters of the Class Action Fairness Act (CAFA), Issacharoff and Nagareda ground their proposal in the concept of the �anomalous court.� For CAFA supporters, the concern was the �anomalous� state courts�also termed �judicial hellholes��that were willing… Expand

CAFA Judicata: A Tale of Waste and Politics

KEVIN M. CLERMONT & THEODORE EISENBERG

The Class Action Fairness Act (CAFA) has taken on its real form through construction by federal judges. That form emerges in this empirical study of judicial activity and receptivity in regard to the Act. Our data comprise the opinions under the Act published during the… Expand

The Class Action Fairness Act of 2005 in Historical Context: A Preliminary View

STEPHEN B. BURBANK

Jurisdictional legislation, like the law of procedure with which it tends to be grouped, can become disembodied from the political and social con-texts in which it was enacted, the political and social contexts in which it functions, and the historical and institutional… Expand

Has the Erie Doctrine Been Repealed by Congress

GEOFFREY C. HAZARD, JR.

The enactment of the Class Action Fairness Act of 2005 (CAFA) is a congressional pronouncement implying that the Erie Doctrine is seriously erroneous. In broad terms, CAFA allows class actions that have been filed in state courts and that are based on state substantive… Expand

CAFA’s Impact on Class Action Lawyers

HOWARD M. ERICHSON

Procedural reforms alter litigation options directly, but they alter the litigation landscape in more ways than reformers anticipate. Three years ago, Congress dramatically expanded federal jurisdiction with the Class Action Fairness Act of 2005 (CAFA), a statute drafted… Expand

Federal Jurisdiction and Due Process in the Era of the Nationwide Class Action

TOBIAS BARRINGTON WOLFF

The class action has come of age in America. With increasing regularity, class litigation plays a central role in discussions about theory, doctrine, and policy in the American civil justice system. The dynamics of the class action lie at the heart of current debates over… Expand

Procedure, Politics, Prediction, and Professors: A Response to Professors Burbank and Purcell

STEPHEN N. SUBRIN

It is a daunting assignment to attempt to add something of merit to the work of Stephen Burbank and Edward Purcell, two of the leading scholars of American civil procedure and procedural reform. Their papers, though, do suggest four themes to me, which I will comment upon… Expand

The Class Action Fairness Act in Perspective: The Old and the New in Federal Jurisdictional Reform

EDWARD A. PURCELL, JR.

The Class Action Fairness Act of 2005 (CAFA) was the product of an extended and well-organized political campaign. In Congress, its passage required a grinding eight-year effort, several modifications to the original proposal, numerous committee hearings, multiple reports… Expand

Assessing CAFA’s Stated Jurisdictional Policy

RICHARD L. MARCUS

Anyone who addresses jurisdictional policy must contend with the fact�proclaimed at the outset of Professors Wright and Kane�s Federal Courts treatise�that �there is to this day no consensus as to the historical justification or the contemporary need for diversity… Expand

Overruling Erie: Nationwide Class Actions and National Common Law

SUZANNA SHERRY

The Class Action Fairness Act of 2005 (CAFA) reflects a sharp change of direction in contemporary thinking about federalism. It expands federal jurisdiction substantially, placing many more state law claims into federal court. In so doing, it highlights and attempts to… Expand

CAFA Settlement Notice Provision: Optimal Regulatory Policy?

CATHERINE M. SHARKEY

Sometimes the periphery proves to be of central importance. In its infant years, the Class Action Fairness Act of 2005 (CAFA) has undergone much critical scrutiny. This Article moves us to the periphery to evaluate the largely ignored settlement notice provision. The… Expand

Lessons in Federalism From the 1960s Class Action Rule and the 2005 Class Action Fairness Act: “The Political Safeguards” of Aggregate Translocal Actions

JUDITH RESNIK

What does the Class Action Fairness Act of 2005 (CAFA) teach us about federalism? A first lesson is that, when confronted with state-based decision making of which they disapprove, national lawmakers federalize rights, as they have repeatedly done throughout United States… Expand

The Impact of the Class Action Fairness Act on the Federal Courts: An Empirical Analysis of Filings and Removals

EMERY G. LEE III & THOMAS E. WILLGING

This Article presents preliminary findings from the Federal Judicial Center�s (FJC) study of the impact of the Class Action Fairness Act of 2005 (CAFA) on filings and removals of class actions in the federal courts. After setting the FJC research in the context of the… Expand

Class Settlements Under Attack

SAMUEL ISSACHAROFF & RICHARD A. NAGAREDA

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… Expand

The Role of Choice of Law in National Class Actions

LINDA SILBERMAN

A number of the papers in this Symposium on the impact of the Class Action Fairness Act of 2005 (CAFA) have focused on the allocation of state and federal authority with respect to jurisdiction over nationwide class actions. This Article takes a different perspective by…

VOLUME 156, ISSUE 5 MAY 2008

ARTICLES

Punishing the Innocent

JOSH BOWERS

Scholars highlight an “innocence problem” as one of plea bargaining’s chief failures. Their concerns, however, are misguided. In fact, many innocent defendants are better off in a world with plea bargaining than one without it. Plea bargaining is not the cause of… Expand

Relational Tax Planning Under Risk-Based Rules

ALEX RASKOLNIKOV

Risk-based rules are the tax system’s primary response to aggressive tax planning. They usually grant benefits only to those taxpayers who accept risk of changes in market prices (market risk) or business opportunities (business risk). Attempts to circumvent these rules… Expand

Excluding Religion

NELSON TEBBE

Tebbe�s Article considers whether the government may single out religious actors and entities for exclusion from its support programs. The problem of selective exclusion has recently sparked interest in lower courts and in informal discussions among scholars, but the… Expand

COMMENTS

Indigenous Peoples’ Courts: Egalitarian Juridical Pluralism, Self-Determination, and the United Nations Declaration on the Rights of Indigenous Peoples

CHRISTOPHER J. FROMHERZ

Assessing the Proper Relationship Between the Alien Tort Statute and the Torture Victim Protection Act

PHILIP MARIANI

VOLUME 156, ISSUE 4 APRIL 2008

ARTICLES

Integrating Accommodation

ELIZABETH F. EMENS

Deadlines In Administrative Law

JACOB E. GERSEN & ANNE JOSEPH O’CONNELL

A cottage industry in administrative law studies the various mechanisms by which Congress, the President, and the courts exert control over administrative agencies. Restrictions on the appointment and removal of personnel, the specification of requisite procedures for… Expand

Constitutional Showdowns

ERIC A. POSNER & ADRIAN VERMEULE

COMMENTS

Dismantling the Felony-Murder Rule: Juvenile Deterrence and Retribution Post-Roper v. Simmons

ERIN H. FLYNN

The Court�s dicta in Roper v. Simmons seem to foreclose immediate Eighth Amendment challenges to juvenile LWOP sentences. This Comment seeks to show that the Court�s recognition of three main differences between juveniles and adults leaves open to principled attack one of… Expand

Flashback to the Federal Analog Act of 1986: Mixing Rules and Standards in the Cauldron

GREGORY KAU

VOLUME 156, ISSUE 3 MARCH 2008

ARTICLES

An Empirical Study of U.S. Copyright Fair Use Opinions, 1978-2005

BARTON BEEBE

Equity and Debt Decoupling and Empty Voting II: Importance and Extensions

HENRY T. C. HU & BERNARD BLACK

Two Conceptions of Emotion in Risk Regulation

DAN M. KAHAN

COMMENTS

Successor Liability Under CERCLA: It’s Time To Fully Embrace State Law

MICHAEL CARTER

Stacking the Deck: Futility and the Exhaustion Provision of the Prison Litigation Reform Act

EUGENE NOVIKOV

VOLUME 156, ISSUE 2 DECEMBER 2007

ARTICLES

Law and the Market: The Impact of Enforcement

JOHN C. COFFEE, JR.

Structuring Judicial Review of Electoral Mechanics: Explanations and Opportunities

CHRISTOPHER S. ELMENDORF

Causing, Aiding, and the Superfluity of Accomplice Liability

MICHAEL S. MOORE

COMMENTS

Appended Post-Passage Senate Judiciary Committee Report: Unlikely “Legislative History” for Interpreting Section 5 of the Reauthorized Voting Rights Act

ERICA LAI

The Constitutionality of Federal Restrictions on the Indemnification of Attorneys’ Fees

NISHCHAY H. MASKAY

VOLUME 156, ISSUE 1 NOVEMBER 2007

ARTICLES

The Short and Puzzling Life of the “Implicit Minority Discount” in Delaware Appraisal Law

LAWRENCE A. HAMERMESH & MICHAEL L. WACHTER

International Consensus as Persuasive Authority in the Eighth Amendment

YOUNGJAE LEE

Antitrust and Nonprofit Hospital Mergers: A Return to Basics

BARAK D. RICHMAN

COMMENTS

Expanding the Scope of the Hatch-Waxman Act’s Patent Carve-Out Exception to the Identical Drug Labeling Requirement: Closing the Patent Litigation Loophole

JULIE DOHM

Third-Party Ratings as Modern Reputational Information: How Rules of Professional Conduct Could Better Serve Lower-Income Legal Consumers

COLLEEN PETRONI