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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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The Conservative Class Action

The Conservative Class Action

(p.114) Chapter Nine The Conservative Class Action
The Conservative Case for Class Actions

Brian T. Fitzpatrick

University of Chicago Press

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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