Abstract

http://ssrn.com/abstract=1247720
 
 

Citations (2)



 
 

Footnotes (287)



 


 



Class Certification in the Age of Aggregate Proof


Richard A. Nagareda


Deceased (Vanderbilt University Law School)

August 22, 2008

New York University Law Review, Vol. 84, No. 97, 2009
Vanderbilt Public Law Research Paper No. 08-42

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.

Number of Pages in PDF File: 78

Keywords: class actions, expert testimony, aggregate proof, fraud-on-the-market doctrine, civil RICO, tobacco litigation, Wal-Mart, employment discrimination, pattern or practice of discrimination

Accepted Paper Series


Download This Paper

Date posted: August 25, 2008 ; Last revised: September 27, 2010

Suggested Citation

Nagareda, Richard A., Class Certification in the Age of Aggregate Proof (August 22, 2008). New York University Law Review, Vol. 84, No. 97, 2009; Vanderbilt Public Law Research Paper No. 08-42. Available at SSRN: http://ssrn.com/abstract=1247720

Contact Information

Richard Allen Nagareda (Contact Author)
Deceased (Vanderbilt University Law School)
N/A
Feedback to SSRN


Paper statistics
Abstract Views: 3,084
Downloads: 584
Download Rank: 24,838
Citations:  2
Footnotes:  287

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo8 in 0.219 seconds