The Future of Class Action Litigation

Co-hosted with the NYU Journal of Law & Business

Once consumer class actions were praised for increasing access to justice by compensating "small claims held by small people." They also served as a form of regulation. By overcoming the problematic economics of small-stakes individual litigation, they allowed for the private enforcement of the law. The Supreme Court once described these "negative value" suits as "the very core of the class action mechanism." Now, consumer class actions face serious criticism for failing to provide compensation to class members or to achieve effective market regulation. Perhaps as a result, it is harder to certify a consumer class action today than at any time since the adoption of modern Rule 23 in 1966.

Participants in our conference discussed a broad range of issues relating to recent developments in the law of consumer class actions. The conference also considered what the criticism of consumer class actions means for the future of class actions more generally. If "the very core" of class actions goes away, what will be left?

Keynote Address by Chief Judge Alex Kozinski, US Court of Appeals for the Ninth Circuit
In conversation with University Professor Arthur Miller

Welcoming Remarks

Peter L. Zimroth, Director of the Center on Civil Justice
Dean Trevor W. Morrison, NYU School of Law

Panel 1 - The Current State of the Consumer Class Action

Moderator: Samuel Issacharoff, Bonnie and Richard Reiss Professor of Constitutional Law and Faculty Co-Director, Center on Civil Justice, NYU School of Law

When Peace is Not the Goal of a Class Action Settlement
D. Theodore Rave, Assistant Professor of Law, University of Houston Law Center

The Identifiable Consumer: The Ascertainability Doctrine and Rule 68 Offers as Impediments to the Class
Myriam Gilles, Professor of Law, Benjamin N. Cardozo School of Law

Comments: Andrew Pincus, Mayer Brown

Panel 2 - Reforming the Consumer Class Action

Moderator: Troy A. McKenzie, Professor of Law and Faculty Co-Director, Center on Civil Justice, NYU School of Law

Constructing Issue Classes
Elizabeth Chamblee Burch, Associate Professor of Law, University of Georgia School of Law

Compensation in Consumer Class Actions: Data and Reform
Brian T. Fitzpatrick, 2014-15 FedEx Research Professor of Law, Vanderbilt Law School (with Robert C. Gilbert, , Grossman Roth)

Comments: Elizabeth J. Cabraser, Lieff Cabraser Heimann & Bernstein
Orran Brown, BrownGreer

Panel 3 - Alternatives to the Consumer Class Action

Moderator: Michael Barr, Professor of Law, University of Michigan Law School

Contract Procedure, Regulatory Breakdown
David Noll, Assistant Professor of Law, Rutgers University School of Law – Newark

Government Compensation and the Class Action
Adam Zimmerman, Associate Professor of Law, Loyola Law School

Comments: Mark Goodman, Debevoise & Plimpton

Panel 4 - Roundtable Discussion: Consumer Class Actions and the Future of the Class Action

Moderator: Arthur Miller, University Professor and Faculty Co-Director, Center on Civil Justice, NYU School of Law

Participants:

  • Sheila A. Birnbaum, Quinn Emanuel Urquhart & Sullivan
  • Elizabeth J. Cabraser, Lieff Cabraser Heimann & Bernstein
  • Charles Delbaum, National Consumer Law Center
  • Andrew Pincus, Mayer Brown
  • Hon. Lee H. Rosenthal, US District Court for the Southern District of Texas