The Download of the Week is Class Certification in the Age of Aggregate Proof by Richard A. Nagareda. Here is the abstract:
Few pre-trial motions in our civil justice system elicit as much controversy as those for the certification of class actions. This Article offers the first account in the literature of the challenges faced today by courts in light of an important series of federal appellate decisions that direct the courts to resolve competing expert submissions on the class certification question in the pre-trial stage - even when the dispute overlaps with the merits of the litigation - in the course of determining the application of Rule 23.
Across broad swaths of class action litigation today, proponents of class certification invoke aggregate proof - evidence, typically of an economic or statistical nature, that presupposes the cohesiveness of the aggregate unit for litigation and, from that perspective, seeks to reveal quantitatively a common wrong attributable to the defendant. Debates over the proper role of aggregate proof unite what otherwise might seem disparate disputes over class certification today across securities, antitrust, RICO, consumer fraud, and employment discrimination litigation. Too often, however, courts have taken at face value the evidentiary form that aggregate proof assumes in class certification.
This Article urges a new conceptualization of the challenges facing courts in class certification today. The real question about aggregate proof in class certification is not one that speaks to the relationship between the court and the fact finder in the (usually, purely hypothetical) event of a class-wide trial. Rather, the institutional relationship that really matters is the one between the court and the legislature as expositors of governing law. Properly understood, aggregate proof offers not so much a contested view of the facts but, more fundamentally, a contested account of governing law - one eminently suited for judicial resolution and appellate correction de novo, without concern about possible intrusion into the role of the fact finder.
This Article exposes how renewed attention to the judicial role to say what the law is can lend coherence to the law of class certification, offering the first extended assessment of such controversial recent litigation as the civil RICO class action against the tobacco industry concerning its marketing of light cigarettes and the largest employment discrimination class action in history against Wal-Mart concerning the pay and promotion of its hourly female employees. The Article concludes by relating the analysis of class certification to larger changes in the civil justice system to grapple with the reality of settlement, rather than trial, as the endgame of litigation.
And from the text:
Law declaration as necessary to assess the propriety of class certification is consonant not just with other features of class-action doctrine. More broadly, the view urged here is consonant with a larger rethinking of pre-trial motions practice as a whole. This rethinking stems from what is now a widely shared recognition of the unexpected consequences that have flowed from the 1938 revamping of the Federal Rules, which put into place to our present-day system of notice pleading.282 The stark operational fact today is that civil procedure is not about the preparation for cases for trial. In descriptive terms, trial is exceedingly rare, not only in class actions but in civil litigation generally. What the 1938 reformers cast as the Federal Rules of Civil Procedure effectively operate now, in the age of the “vanishing trial,”283 as rules of civil settlement procedure. They define the process by which the civil justice system sends signals about the valuation of claims, such as then to inform claims resolution by private settlement, not by jury verdict.
And a bit more:
The challenge of all this to the ethos of the 1938 proceduralists cannot be gainsaid. The challenge does not arise merely from the observed reality of settlement rather than trial as the endgame of civil litigation. The challenge ultimately speaks to the aspiration of the 1938 reform enterprise to create a genuinely trans-substantive regime of procedural rules. No one is advocating a return to the hypertechnical formalism attributed to the nineteenth-century regime of pleading under the forms of action. But what we are seeing in the emerging notion of law declaration as necessary to inform class certification is, nonetheless, an attempt to reconnect procedure and substance – just one informed by our contemporary sensibilities.
A securities fraud claim is different from an employment discrimination claim; and both differ, in turn, from an antitrust or RICO claim. The nascent recognition in the law today for the centrality of law over fact in class certification exhibits a healthy respect for these differences of context. This, too, accords with the attentiveness to matters of institutional allocation counseled in this Article. Law declaration by courts as necessary to guide the class certification process offers a more flexible, adaptable way to connect procedure to substance than rules of procedure that rule designers somehow might attempt to differentiate expressly by subject area. What is likely to emerge is a kind of trans-substantive veneer for the Federal Rules, but with their on-the-ground operation calibrated depending upon subject area, subject to legislative revision, and open to the adaptation of legal doctrine to account for the kinds of new interdisciplinary insights that Holmes anticipated.
Impressive, erudite, and important. Download it while its hot!
