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The Conservative Case for Class Actions$
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Brian T. Fitzpatrick

Print publication date: 2019

Print ISBN-13: 9780226659336

Published to Chicago Scholarship Online: May 2020

DOI: 10.7208/chicago/9780226659473.001.0001

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PRINTED FROM CHICAGO SCHOLARSHIP ONLINE (www.chicago.universitypressscholarship.com). (c) Copyright University of Chicago Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in CHSO for personal use.date: 17 January 2022

The Conservative Class Action

The Conservative Class Action

Chapter:
(p.114) Chapter Nine The Conservative Class Action
Source:
The Conservative Case for Class Actions
Author(s):

Brian T. Fitzpatrick

Publisher:
University of Chicago Press
DOI:10.7208/chicago/9780226659473.003.0010

This chapter takes seriously the best arguments against class actions and responds with appropriate reforms. For example, it is true that many of the substantive laws class actions enforce are bad laws. The solution is breach the principle of “trans-substantive” procedural rules and limit class action lawsuits only to the good laws, such breach of contract, fraud, and price fixing. In addition, it is true that companies sometimes oversettle meritorious class actions to avoid risk and litigation expenses. The solution is to reduce risk by using sampling during class action trials and to reduce expenses by fee shifting (or something I call a “discovery tax”) and enabling defendants to delay discovery pending interlocutory appeal of a motion to dismiss. I argue that reforms such as these are more politically feasible now than ever because the AT&T v. Concepcion decision discussed in chapter 1 has given political conservatives incredible leverage.

Keywords:   conservative, liberal, AT&T v. Concepcion, class action, reform, trans-substantive, fee shifting, discovery tax, sampling, interlocutory appeal

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