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Abstract:
This is what it purports to be: a Seussian take on civil procedure. It’s a short, fun essay that covers (1) the iron triangle of civil procedure - the role of lawyers, judges, and juries, and (2) prominent civil procedure doctrines, such as personal jurisdiction, Erie, pleading, discovery, and joinder.

Dr. Seuss, civil procedure, Bell Atlantic v. Twombly, Iqbal, judges, juries, personal jurisdiction, Erie, pleading, discovery, joinder, preclusion, Horton, Zax, Circus, Sneetch, pale green pants, Hanna v. Plumer

Abstract:
No coherent doctrinal statement exists for calculating open-market damages for securities fraud class actions. Instead, courts have tried in vain to fashion common-law deceit and misrepresentation remedies to fit open-market fraud. The result is a relatively ineffective system with a hallmark feature: unpredictable damage awards. This poses a significant fraud deterrence problem from both a practical and a theoretical standpoint.

In 2005, the Supreme Court had the opportunity to clarify open-market damage principles and to facilitate earlier dismissal of cases without compensable economic losses. Instead, in Dura Pharmaceuticals v. Broudo, it further confused the damage issue by (1) perpetuating the idea that courts can tailor damages from common-law deceit and misrepresentation actions to remedy open-market fraud despite the practical disparities between the two and (2) opening the door to a new form of hypothetical losses where the stock price increases after an opportune disclosure of fraud.

The Supreme Court's insinuation that a new form of hypothetical losses might be recoverable further inhibits predictability and could have perverse effects on investor education and motivation. In Dura, the Court implied that an investor might be able to recover damages when a stock's price does not increase as much as it might have absent the fraud. This suggests that plaintiffs might not be limited to traditional out-of-pocket losses. A number of intrinsic problems could result from compensating investors for more than their out-of-pocket losses. For example, providing investors with a double-recovery, one from the net stock price increase and one from class-action damages, could create a perverse incentive to invest purposefully in companies showing signs of fraud. Accordingly, to minimize these effects and to promote predictability, this Article suggests that courts should limit plaintiffs to recovery for their out-of-pocket losses.

My intention in this Article is not to imply that simply limiting investors to their out-of-pocket losses will provide a quick "fix" for the ills of the securities class-action system. Instead, I hope to highlight some of the intrinsic problems that could result from compensating investors with a net gain and from stretching traditional common-law remedies to fit modern securities-fraud class actions. The out-of-pocket measure is the only common-law remedy that recognizes the distinctions between face-to-face transactions and open-market fraud, that complies with the loss causation requirement, and that limits plaintiffs to their actual damages. Restricting investors to out-of-pocket losses also advances optimal deterrence by increasing predictability through a clear doctrinal damage calculation.

Class Action, Securities Fraud, Dura, Remedies, Out-of-Pocket losses, Loss Causation, Common Law Deceit, Misrepresentation

Abstract:
Securities class actions are on the chopping block-again. Traditional commentators continue to view class actions with suspicion; they see class suits as nonmeritorious byproducts of self-interest and the attorneys who bring them as rent-seekers. Their conventional approach has popularized securities class actions' negative effects. High-profile commissions capitalizing on this rhetoric, such as the Committee on Capital Markets Regulation, have recently recommended eliminating or severely curtailing securities class actions. But this approach misses the point: in the ongoing push and pull of securities regulation, corporations are winning the battle.

Thus, understanding the full picture and texture of securities class actions necessitates a positive pragmatic account. This Article provides that account and thus fills a significant gap in the benefit side of academic cost-benefit literature. To do so, however, it self-consciously begins from a controversial assumption: namely, that securities class actions provide a public good. Integrating both public and private actors into ex post enforcement diminishes collective action dilemmas, agency inaction, and private resolution of public law matters through arbitration. Moreover, by supplementing ex post enforcement, securities class actions produce positive externalities, spillover effects that confer public advantages such as: innovation, cost-reduction through information sharing, deterrence, transparent judicial process, and both corporate and enforcement accountability. So, while I harbor no illusion that the securities class action always functions optimally and have a number of lingering doctrinal and jurisprudential concerns about its operation, I also recognize its comparative institutional capability to make transparent an increasingly opaque process, craft decisional rules and interpretations that guide future behavior, cultivate innovation, deter fraud, and hold corporations, exchanges, and the SEC publicly accountable. This piece thus envisions the ramifications of eliminating securities class actions by imagining a world with government-centric securities enforcement. That world, I contend, is one steeped in bureaucracy, one failing to produce behavior-guiding precedent, one filled with closed-door arbitrations, one neglecting nonprioritized misconduct, and one ignoring litigant preference for judicial process. In short, it is a world less preferable than our current system-flawed though it is.

corporate governance, securities class actions, regulation, enforcement, SEC, public good, transparency, accountability, innovation, private rights of action

Abstract:
Women account for almost two-thirds of the world's illiterates. In the year 2000, the World Education Forum met in Dakar, Senegal and set goals to (1) eliminate gender disparities in primary and secondary education by 2005, and (2) achieve gender equality in education by 2015. Two months before 2004, the United Nations Educational, Scientific, and Cultural Organization (UNESCO) reported that sixty percent of the 128 countries that attended the Dakar Conference would not meet these goals. The report attributed the failure to sharp discrimination against girls in social and cultural practices.

The report failed to mention that social and cultural practices persist in many countries with high disparities because of the practices' firm entrenchment in the Islamic religion. Islam is the dominant religion in the majority of countries with the highest levels of gender disparity in education in favor of boys. The report identified the causes of gender disparity as labor market inequalities, enduring stereotypes, cultural preference for sons, early marriage, early pregnancy, domestic labors, and HIV/AIDS. Although the report attributed disparity to social norms and traditional practices, it failed to acknowledge that these norms and practices are symptoms and manifestations of the same source: Islamic fundamentalism.

Because religion and culture cause the disparity, the United Nations' organizations and many human rights groups opt to approach the situation with either carefully worded rhetoric or silence. These organizations implicitly consent to the cultural relativist position on human rights by remaining silent as well as by focusing their efforts on reporting violations committed against Islamic fundamentalists. As the founder of a dissonant female Muslim group noted, cultural relativism is "the big threat," and "everything can be tolerated in the name of culture." Only when fundamentalist groups seize power, as occurred with the Taliban in Afghanistan, do the United Nations and human rights groups report on violations committed by fundamentalists.

Deference to fundamentalists ignores the voices of dissension from Muslim female groups and prevents an effective campaign that identifies and targets religion as the root cause for educational disparity. For girls to realize their right to education, the international community must recognize and legitimize the voices of opposition, confront despotism in religion, encourage the eradication of biased gender roles regardless of their origin, and invest in innovative human rights education.

This Article examines the state's obligations to provide education and the dynamic among religion, culture, and education. Since previous legal scholarship provides little detail about education as a human right, Part II begins by outlining the historical progression and provisions within international treaties that confer the right to education. It also discusses treaty reservations for provisions that conflict with Islamic Shari'a made by a number of the countries with high gender disparities. Part II concludes by acknowledging the crucial role that United Nations organizations perform in monitoring the right to education. Part III continues to develop this framework on the right to education by detailing the state's obligation to make education available, accessible, acceptable, and adaptable.

Part IV shifts from providing a general background to the ways in which gender bias in religion and culture cause the gender gap in educational enrollment. This part focuses on the Islamic religion since the majority of the countries with the highest levels of gender disparity in favor of boys are predominately Islamic. After identifying the fundamentalist interpretation of the Islamic religion as the root cause of educational disparity, Part IV also examines several specific Islamic manifestations in law, custom, and culture, including the practice of requiring women to wear the veil, the increased risk of HIV/AIDS due to polygamy, the problems with child marriages, and the labor market inequities of limited employment opportunities.

Part V proposes that human rights organizations use the modernist interpretation of the Qur'an and innovative human rights education to deconstruct the inequities that obstruct girls' right to education. By beginning with Feminist exegesis of the Bible as one example of how theologians have reinterpreted gender constructs in religion, part A envisions a similar path for the Qur'an. Finally, part B applauds the grassroots work of dissonant female Muslim groups such as Sisters in Islam and Women Living Under Muslim Laws that embrace and disseminate alternative paradigms of the Muslim woman. It urges the United Nations and human rights organizations to recognize and legitimize these dissonant groups and their religious interpretations and to begin a campaign against educational disparity that acknowledges religion as the root of the problem. Since education functions as a gateway right, educating girls empowers them to further combat patriarchal views and gendered stereotypes within the broader community.

Abstract:
Class actions regulate when government fails. Perhaps this use as an ex post remedy when ex ante regulation founders explains the fervor and rhetoric surrounding Rule 23's political life. In truth, the class action does more than aggregate; it augments government policing and generates external societal benefits. These societal benefits - externalities - are the spillover effects from facilitating small claims litigation. In federalizing class actions through the Class Action Fairness Act (CAFA), Congress, in some ways, impeded class action practice, thereby negating its positive externalities and inhibiting backdoor regulation. This Article critically considers those effects on the common good. It also develops an implicit but overlooked theme within the CAFA debate - the notion that litigation itself is a public good.

CAFA, class action fairness act, choice-of-law, procedural justice, spillover, externality, transparency, deterrence, public litigation, private attorneys' general

Abstract:
Large-scale litigation, such as the Vioxx, Zyprexa, and asbestos cases, breeds conflict. Conflicts arise between attorneys and their clients (agency problems), plaintiffs and other plaintiffs (group problems), and plaintiffs' attorneys and other plaintiffs' attorneys (competition problems). Although these cases cannot be certified as class actions, they still proceed en masse to achieve economies of scale and present a credible threat to defendants. Assuming that coordinating and consolidating large-scale litigation is systemically desirable, this Article explores a new approach to removing the group and agency problems that increase aggregate litigation's costs and undermine its normative goals such as fairness, compensation, and deterrence.

Unlike traditional scholarship that emphasizes individual autonomy or welfare maximization, this Article borrows from the literature of moral and political philosophy as well as social psychology to analyze group dynamics within nonclass aggregation. It requires us to view plaintiffs within large-scale litigation as a community of sorts and to recognize that sometimes litigants incur obligations simply by virtue of being a group member, whether chosen or not and whether welfare maximizing or not. Moreover, empirical studies demonstrate that once people consider themselves part of a group, they exhibit other - regarding preferences - trust, reciprocity, and altruism - toward other members. Cohesive group members are more likely to cooperate with one another and care about the collective outcome, and less likely to exit the group when doing so benefits the individual rather than the group In the face of hard cases, of instability and disunity, plaintiffs who have made promises and assurances to one another can invoke social norms of promise-keeping, social agglomeration, compatibility, and the desire for means-end coherence to achieve consensus, mitigate client-client conflicts, and restore the tether between clients and their attorney. Thus, using groups to overcome the problems in nonclass aggregation not only makes sense from a group responsibility perspective, it may also harmonize with wealth maximization and individual autonomy goals.

Vioxx, Zyprexa, nonclass aggregation, class actions, social psychology, other-regarding preferences, moral philosophy, obligations, group cohesion, mass tort, mass litigation

Abstract:
Although he Bush administration began Operation Iraqi Freedom with the pretext of searching for weapons of mass destruction, the operation ultimately liberated a nation that spent decades under a dictatorial regime. For at least the past twenty to thirty years, the Iraqi people, including the Kurds, lived as victims of their own government. Saddam Hussein and his regime victimized the Iraqi people through torture, execution, and deportation. As President Bush stated in his address on May 1, 2003, America is "pursuing and finding leaders of the old regime, who will be held to account for their crimes." After United States troops captured Hussein on December 13, 2003, President Bush declared, "now the former director of Iraq will face the justice he denied to millions."

On January 9, 2004, the United States officially declared Saddam Hussein a prisoner of war and indicated that it will turn him over to a special court established by the Iraqi Governing Council under the direction of the Coalition Provisional Authority. Yet, prosecution in this forum fails to ensure proof of guilt beyond a reasonable doubt as required by Article 14 of the International Covenant on Civil and Political Rights and does not prohibit the death penalty. Further, such prosecution requires the application of Iraqi criminal law and procedure where otherwise unarticulated in the statute creating it. This might allow Hussein to twist the laws he implemented to his advantage. Consequently, this Article focuses on alternative fora for jurisdiction over Hussein, recommends an ad hoc international criminal tribunal that does not provide for the death penalty, and examines Hussein''s liability for genocide against the Kurds and crimes against humanity.

This Article will explore and catalogue the international case against Hussein for injuries inflicted on the Iraqis and the Kurds before the war began. Although the focus will remain primarily on Saddam Hussein, much of the rationale also applies to other regime participants. Part II begins with a historical overview of the Iraqi peoples' oppression and focuses on the consequences of Hussein's decisions and orders. Part III reviews different jurisdictional options including a national trial by Iraq, prosecution in the United States, the International Criminal Court, and an international ad hoc tribunal akin to those established in Rwanda and Yugoslavia. This Part ultimately recommends that Hussein's prosecution take place in an international ad hoc tribunal situated in Iraq. The Security Council, under its Chapter VII authority, may establish an ad hoc criminal tribunal to prosecute Hussein for committing or participating in crimes against humanity and genocide. Part IV discusses Iraq's international legal obligations including treaties and United Nations membership requirements. Part V examines the legal ramifications of Hussein's genocide campaign against the Kurds and applies the relevant elements to Hussein's actions. It also addresses the limited arguments that Hussein's defense counsel could raise. Part VI applies international principles concerning crimes against humanity to Saddam Hussein's most flagrant crimes against the Iraqi citizens.

Abstract:
In recent years, the class action certification hearing has become the latest forum for disputes over the reliability of expert testimony. Since these hearings may involve complex technical matters, litigants frequently try to introduce expert testimony to either establish or challenge the basic requirements for class certification. Yet, most courts do not conduct a Daubert analysis before admitting expert testimony during certification, evaluate the evidence according to a uniform standard, or adequately weigh opposing expert opinions.

Even though the Federal Rules of Evidence codify procedures to ensure the reliability of expert testimony, courts have been reluctant to employ them during class certification. This hesitation primarily arises from a fear of moving into the substantive merits of the case. Certifying a class based on unreliable expert testimony forces courts to decertify the class later in the process, encourages frivolous suits that strong-arm risk averse defendants into settlement, wastes judicial resources, and undermines the legitimate purposes of the class action mechanism. Ideally, to make a fair and informed decision on certification, judges should use the wide latitude in the current gray area between Eisen v. Carlisle & Jacquelin's prohibition on an inquiry into the case's merits and General Telephone Company v. Falcon's rigorous analysis requirement to (1) routinely apply Daubert as a precursor to admitting expert evidence, (2) adequately weigh opposing expert opinions as well as the rest of the evidence, and (3) employ a preponderance of the evidence standard to determine the sufficiency of the plaintiffs' proof before resolving ambiguities in favor of the plaintiffs and erring on the side of certification.

This Comment takes a closer look at the judicial handling of experts in federal class certification hearings, the amount of proof required for certification, and how courts evaluate the sufficiency of the evidence. The Comment ultimately argues that courts should admit expert affidavits and reports only if they survive an initial Daubert analysis. Part II begins by briefly outlining the prerequisites for certifying a class in Federal Rule of Civil Procedure 23 and discusses the variations in Supreme Court decisions that have led to confusion during certification. This part also discusses the ambiguous threshold of proof courts use to weigh the sufficiency of the evidence offered to satisfy Rule 23. Part III then explains the Daubert analysis and remarks on the ways in which parties rely on experts to prove or disprove the Rule 23 certification requirements. Part IV examines a misinterpretation of Federal Rule of Evidence 1101 as a possible root cause for not applying the Federal Rules of Evidence during certification. It also discusses how the judiciary has responded to Daubert challenges and how seriously they examine the expert evidence once admitted.

Part V focuses on ways to institute a principled approach to expert evidence in class certification. Since courts admit expert evidence via affidavits in both summary judgment and class certification, and because summary judgment employs the Federal Rules of Evidence, Part V.A suggests that the summary judgment process provides a viable starting point for discussion on implementing evidentiary rules in certification proceedings. Part V.B then elaborates on a framework and rationale for using Daubert during class certification in light of the summary judgment process, the Federal Rules of Civil Procedure, and the Federal Rules of Evidence.

Part VI addresses two important changes in the landscape of class actions: the use of certification to blackmail defendants into settlement, and the possibility that Congress will pass a class action fairness act. Part VI.A comments on how courts could use Daubert and their duty to independently evaluate the evidence to minimize coercion in the event of weak class certification claims. Part VI.B anticipates the possibility that Congress may pass a class action fairness act and proposes that federal courts could lessen the additional burden on their judicial system by weighing the evidence offered for certification and utilizing Daubert before admitting expert testimony. Finally, Part VII outlines the broad discretion given to the district courts through both Rule 23(d) and the abuse of discretion standard of review. This part argues that courts should use their discretion to conduct a Daubert analysis and to sufficiently weigh the proof offered for Rule 23 before ruling on certification.

Abstract:
Nonclass aggregate litigation is risky for plaintiffs: it falls into the gray area between individual litigation and certified class actions. Although scholars have formulated procedural protections for both extremes, the unique danger and allure posed by nonclass aggregation has been undertheorized, leaving mass tort claimants with inadequate safeguards. When hallmark features of mass torts include attenuated attorney-client relationships, numerous litigants, and the demise of adversarial legalism, the attorney-client relationship itself becomes another bargaining chip in the exchange of rights. This Article thus takes the initial steps toward advancing a cohesive theory of procedural justice in nonclass aggregation by exposing the problem itself, discerning the principal disparities between litigant preference and mass tort practice, and identifying the main obstacles to implementing procedural preferences. In so doing, it observes that procedural justice is context-dependent and thus a matter of perspective. Claimants' perspectives and procedural preferences vary depending on whether they view themselves as part of a group or a collective. Accordingly, this Article introduces a continuum for evaluating group cohesion and designates two new points along that continuum - "individuals-within-the-collective" and "group-oriented-individuals". It concludes by sketching some preliminary observations about tailoring process to meet the needs of these different plaintiffs and the inherent barriers to implementing procedural justice.

procedural justice, mass torts, social psychology, non-class aggregation, aggregate settlements, participation, adversarial litigation

Abstract:
The potential for attorneys to collude in reaching a settlement agreement arises in any large-scale aggregation of mass torts. In the 1990s, attorneys settled seventy-four percent of the mass tort cases consolidated for transfer by the Judicial Panel on Multidistrict Litigation. Even though most mass tort litigation settles, the judicial system ensures the fairness and integrity of settlements only in the bankruptcy and class action contexts. Consequently, the fairness of the settlement can vary depending on how the judicial system aggregates the claims. Only thirty-nine percent of aggregated claims resulted in class action settlements. Two percent received bankruptcy protections. Approximately forty percent of the mass tort settlements settled outside the scope of judicial review and received no procedural assurances of fairness.

A traditional understanding of mass tort litigation views all aggregation as class actions. As this view holds, class actions deserve special procedural safeguards because they include absent class members. Other forms of litigation allocate autonomy to the individual to make decisions about the conduct of litigation, the course of settlement negotiations, and other decisions conventionally in the scope of the lawyer-client relationship. In non-class litigation, the conventional view assumes that clients protect their own interests by monitoring attorney conduct, choosing when and how to settle, and determining whether to proceed to trial. In class actions, class counsel has a duty to protect the interests of the class as a whole and counsel's decisions bind all class claimants. The individual in a class action has little authority over the conduct of the action, yet remains bound by the ultimate decision, so judges must approve settlement terms and attorneys’ fees as well as ensure that attorneys adequately represent claimants.

Although this traditional understanding appropriately differentiates between class actions and individual representation, it fails to recognize that not all large-scale aggregation satisfies the requirements for class certification. A fluid ground exists between individual representation and class actions. With the rise of mass torts, courts aggregate claims through party joinder, statewide aggregation, bankruptcy, consolidation, and federal multidistrict litigation transfer. Yet, because many of the prerequisites to joinder require only common facts - not the predominance of common facts required for Rule 23(b)(3) class status - courts validly aggregate many claims that fail to meet the requirements of Federal Rule of Civil Procedure 23.

The concerns and symptoms of settlement collusion in class actions are nearly identical to those in post-aggregation settlements: a few attorneys who specialize in representing mass tort victims and defendants have repeated contact with one another and with the transferee judge who handles the factually similar claims; aggregating these claims in a single forum combined with "repeat player" attorneys presents opportunities for collusion; and mass tort claimants have an attenuated attorney-client relationship with their lawyer and exercise little or no meaningful control over their case. In any type of aggregated mass tort litigation, federal judges feel a mounting pressure, be it real or perceived, to efficiently dispose of the cases, which encourages them not to question the settlement terms. In short, collective representation, without the judicial supervision incorporated into the class action and bankruptcy schemes, permits collusion and inequitable settlement allocations that lead to second-class justice for mass tort claimants. Consequently, the judicial system should permit transferee judges to approve post-aggregation settlements using some of the same protective mechanisms contained in Rule 23.

Even though legal literature contains an abundance of information about class action settlements, the aspect of collusion in non-class post-aggregation settlements has largely gone unnoticed. Accordingly, Part II creates a framework for understanding the variations between types of mass torts and explains how collusion can occur within various methods of aggregation. Part II.A defines the different categories of mass torts and highlights the effects of the recent Multiparty, Multiforum Trial Jurisdiction Act of 2002 on single-event mass accidents. Because the category of dispersed/personal injury mass torts has been the most visible, this Article will primarily use those as examples even though the Article’s analysis applies to all types of mass torts. Part II.B pinpoints three primary conditions that contribute to collusion - repeat attorneys specializing in mass torts, a single forum, and a overburdened court - and illustrates how collusion occurs in mass tort settlements through reverse auctions and issue preclusion. Part II.C considers the methods for and limits on aggregation, including removal, the All Writs Act, class actions, consolidation, and change of venue. In discussing the methods for aggregation, this part incorporates and analyzes the 2003 amendments to Rule 23. Part III expands the initial framework in Part II to include the historical purpose and function of the Judicial Panel on Multidistrict Litigation (the Panel). By identifying the need to streamline the federal courts' approach to mass torts as the Panel's primary objective, this part begins to flesh out the origins of a push toward expediency without a counterbalance for fairness.

Part IV develops this impulse toward efficiency by examining two recent Congressional proposals. Part IV.A analyzes the Multidistrict Litigation Restoration Act of 2004, which, if passed, will reverse the Supreme Court’s decision in Lexecon v. Milberg Weiss Bershad Hynes & Lerach. The Lexecon Court rejected the long-standing practice of permitting the transferee court (the court that would receive mass tort litigation from the Panel) to transfer jurisdiction to itself for trial purposes. Allowing the transferee court to retain trial jurisdiction increases the pressure on defendants to settle, which in turn may inflate the number of inadequate settlements. Part IV.B explains and questions the Class Action Fairness Acts, which purport to limit the role of the Panel by preventing it from transferring certain litigation removed from state courts. Even though the bill limits consolidation of actions that do not allege class status, nothing in the bill prevents the court from transferring venue to the court with the majority of similar litigation, then consolidating the actions under Federal Rule of Civil Procedure 42(a). This aggregation also encourages settlement by threatening defendants with more claims.

Part V contrasts the mounting pressure by Congress and the lower courts to streamline mass torts with the Supreme Court's concern about fairness. Part V.A assesses the Court's recognition of the potential for collusion in settlements through its rejection of two asbestos class action settlements, Amchem Products, Inc. v. Windsor and Ortiz v. Fibreboard Corp. This Part argues that had the Court focused on efficiency, it could have affirmed the settlements and eradicated much of the asbestos litigation. Yet, the Supreme Court concentrated not on streamlining cases, but on fairness. Part V.B considers the fairness aspects of using bankruptcy as an alternative to class actions by examining the Dalkon Shield litigation. Part V.C. raises the concern that aggregation "blackmails" defendants into settlement and questions whether success is appropriately measured by settlement. By raising the conflicting goals of the tort system, this part emphasizes the need to reach a balance between fairness and efficiency.

Part V proposes that Congress amend the multidistrict litigation statute to permit judicial oversight of post-aggregation settlements. Part VI.A critiques past proposals to change the mass tort system and observes that many of these proposals mirror the urgency felt by the lower courts and Congress in response to anomalies like the asbestos litigation. Upon concluding that these proposals do not recognize or resolve the potential problems with collusion in aggregated settlements, Part VI.B recommends that Congress amend the multidistrict litigation statute to permit the Panel to endow the transferee court with the power to oversee and authorize settlements outside the class action mechanism. Part VI.C identifies features of a valid non-class aggregated settlement by applying pertinent characteristics of a legitimate class action settlement and suggesting factors that probe the fairness of settlements.

Abstract:
This short piece, written for the Northwestern University Law Review Colloquy, responds to Professor Scott Dodson's comment on Bowles v. Russell, titled Jurisdictionality and Bowles v. Russell. Dodson proposes to navigate a path between Justice Thomas's majority opinion and Justice Souter's dissent by embracing Thomas's use of mandatory and Souter's argument for deeming appellate deadlines nonjurisdictional. Considering the systemic, equitable policies underlying Rule 4(a)(6) and the prototypical examples distinguishing jurisdictional rules (those delineating classes of cases) from nonjurisdictional claim-processing rules, this nonjurisdictional alternative makes sense. It is the mandatory aspect of Professor Dodson's proposal that concerns me; it leaves no room for equity absent the mercy of opposing counsel. I thus focus on the inequitable consequences of labeling a rule either jurisdictional or mandatory.

Bowles v. Russell, jurisdiction, mandatory, nonjurisdictional, equitable, pro se litigants, habeas petition, Federal Rule of Appellate Procedure 4(a), FRAP 4(a)(6)

Abstract:
This short essay responds to Judge Jack Weinstein's essay, Preliminary Reflections on Administration of Complex Litigations, 2009 Cardozo De Novo 1. In so doing, it also provides a condensed version of my earlier article, Litigating Groups, which analyzes group dynamics within nonclass aggregation. By drawing on the literature of moral and political philosophy as well as social psychology, I contend that, in the face of hard cases, of instability and disunity, plaintiffs who have made promises and assurances to one another can invoke social norms of promise-keeping, social agglomeration, compatibility, and the desire for means-end coherence to achieve consensus, mitigate client-client conflicts, and re-tether their attorney to their needs. Thus, using groups to overcome the problems in nonclass aggregation not only makes sense from a group responsibility perspective, it may also harmonize with wealth maximization and individual autonomy goals.

aggregation, class actions, multi-district litigation, agency problems, social psychology, philosophy