The Preservation and Rejuvenation of Aggregate Litigation: A Systemic Imperative
Forgive me if I begin on an autobiographical note. Approximately fifty-five years ago I was a young lawyer transitioning into academe when I became indentured--enthusiastically, I admit--to my professional father, procedure teacher, and summer employer following my second law school year, Professor Benjamin Kaplan, of the Harvard Law School. He was then the Reporter for the Advisory Committee on Civil Rules of the Judicial Conference of the United States. Through a series of byzantine circumstances, I became an informal assistant reporter. I was then the Associate Director of the Columbia Law School Project on International Procedure, and one of my assignments was to convince Ben to present to the Advisory Committee a group of rule revisions I had developed relating to transnational litigation, an obscure and arcane matter at the time. That proved a relatively easy sell, and the proposals navigated the statutory rulemaking process successfully. But the quid pro quo was my commitment to help Ben with what was then at the top of the Advisory Committee’s agenda—the revision of the Federal Rules relating to claim and party joinder.
A Defense Verdict in the First Washing Machine Trial
After several years of intense activity in the class action realm, the Supreme Court appears satisfied to allow the case law in the Circuits to mature. The most recent cases, such as the second round of Halliburton v. Erica P. John Fund, 134 S.Ct. 2398 (2014) on fraud on the market in securities cases, did not offer any fundamental changes to the status quo.
Perhaps the most significant of the cases that the Court did not take involved petitions from certiorari in what are known as the washing machine cases from the Sixth, Seventh, and Ninth Circuits. These cases involved claims that a design defect in front-loading washing machines resulted in mold accumulation and compromised the functioning of the products. The Sixth and Seventh Circuit cases, Glazer v. Whirlpool and Butler v. Sears, brought claims over washing machines manufactured by Whirlpool. The Ninth Circuit case, BSH v. Cobb, challenged a similar alleged defect in machines manufactured by Bosch. Following the Sherlock Holmes maxim on paying attention to the dog that did not bark, there is value in looking a bit more closely at the cases the Court did not review.
Note on the Fall Conference - Consumer Class Actions
On November 7, the Center on Civil Justice held its first major conference. We heard a sterling group of panelists and astute audience participants talk about consumer class actions. The discussion made it apparent that arguments about consumer class actions, though important themselves, are also proxies for debates about class actions in general and about much more in the civil justice system. The panelists debated questions such as: Are consumer class actions an important means of providing access to justice for people who otherwise would not have access? Or, are they a cumbersome, expensive mechanism that benefits only the lawyers? Do they encourage the over-legalization of our society? Or do they provide necessary deterrence--a way for private citizens to enforce public norms? And, if not class actions, then what? Arbitration? And what problems does this privatization of our justice system bring?