Broadening the Scope of Judicial Gatekeeping: Adopting the Good Faith Doctrine in Class Action Proceedings
This paper suggests that using the concept of "good faith", as is used in Israeli class action proceedings, could resolve some of the shortcomings in U.S. class action proceedings. There is a vast literature about the abuse of the class action procedure in the United States. Among other problems, scholars lament the extensive filing of meritless class actions in order to extort unwarranted settlements and the so-called "sweetheart settlements", in which class counsel colludes with the defendant to settle meritorious claims for far less than they are worth, in exchange for fees in excess of those he would have expected had the parties proceeded to trial. Yet, there are no satisfactory solutions to the abuse of this procedure. This paper addresses this gap by describing and evaluating a solution that originates outside the United States. Unlike Rule 23, the recently enacted Israeli Class Actions Law includes a good faith requirement as one of the prerequisites to certification. This requirement is used to scrutinize the motives of the representative plaintiff and the class counsel. Israeli Courts will not certify class actions which have been instituted for collateral or illegitimate purposes such as extortion or harming a competitor. The paper suggests that the application of good faith in the U.S. could resolve some of the more significant flaws in the American class action mechanism. In making this argument, the paper also considers both the larger legal and socio-political contexts - specifically the role that litigation plays in the American and Israeli societies.
The Complexity of Modern American Civil Litigation: Curse or Cure?
Originally prepared for the 2007 meetings of the Italian Association of Comparative Law, this paper seeks to excavate the roots of procedural complexity in modern American litigation. Proceeding from the view that there is no accepted definition of complex litigation in the United States, the paper discusses five related phenomena that the author regards as consequential: (1) the architecture of modern American lawsuits and the procedural philosophy that architecture reflects, (2) the volume of litigation and the public and private policies, attitudes and arrangements that affect it, (3) the dynamic nature of, and dispersed institutional responsibility for, American law, (4) the enormous amounts of money at stake in some litigation, and (5) the search for, and the forms of, relevant evidence in modern American litigation, and the impact of science and technology on both. The paper argues that, having opted for equity's approach to the joinder of claims and parties - in part to ensure effective enforcement of rights but also in part to make such enforcement more efficient - Americans have repeatedly turned to the tools of aggregation as a remedy for that success. In doing so, the people responsible for the courts often override the preferences of the parties (and thus the principle of party autonomy), alter the balance of power in litigation, and render trial effectively impossible. In such instances, they are creating complexity where it is not necessary for effective access to court; the stated goal of efficiency may be a delusion, and in any event aggregation can make little pretense to a goal of accuracy as opposed to dispute resolution simpliciter. Moreover, as the Class Action Fairness Act of 2005 suggests, in a federal system the unremitting quest for aggregation may come at a heavy price to individual state autonomy. In sum, taken to the extremes to which Americans appear to be heading, complex litigation appears to be a cure that has become a curse.
Drug Testing in Public Agencies: Are Personnel Directors Doing Things Right?
The results of a survey of 300 public agencies personnel directors are reported. The report describes the drug and alcohol testing policies and procedures now used by these respondents. The implications of the survey results are evaluated in terms of critical issues of personnel management practice and public policy: (1) the protection of employees' constitutional rights, (2) the public's right to an effective public service, and (3) management's need to reduce liability risks and to increase program effectiveness.