Cy Pres, a doctrine borrowed from the law of trusts, has in recent years been adopted by courts in litigation to distribute class action funds to purposes or recipients other than those presented by the original class action plaintiffs. This once rare, now increasingly common practice, has come under fire for lacking a foundation in applicable law and representing a wholly discretionary exercise of judicial power. Theodore H. Frank, of the Center for Class Action Fairness, discussed the history and practice of this little-known and less-well-understood power of class action courts. Attorney Patrick J. Perotti, of the class action law firm Dworken & Bernstein and "Ohio Lawyers Give Back," presented the case for the use of this practice in class actions. Margaret A. Little, Director of the Federalist Society's Pro Bono Center, moderated. After their remarks, the speakers took questions from the callers.

On August 12, 2011, the Eleventh Circuit Court of Appeals ruled that Congress exceeded its authority by forcing all Americans to purchase health insurance through the health care law’s “individual mandate.” A 2-1 majority held that enacting the individual mandate was beyond Congress’s power under the Commerce Clause. However, the court held that while the individual mandate was unconstitutional, it was severable from the law as a whole, and the rest of the law could stand... Read more!

There is an ongoing robust debate about the structure of litigation in general, and in particular, about access to the courts. For a considerable period of time, the mantra that the courts should be readily available to all to present claims that their rights have been violated has dominated both academic discourse and perhaps significantly influenced the structure of litigation. The conventional view that the courts should be freely open to all was dealt a blow by the Iqbal and Twombly decisions, which imposed greater gatekeeping responsibilities on the federal district courts. Predictably these decisions provoked a storm of protest, in large measure because they may indeed make it more difficult for many petitioners to have their petitions considered on the merits.⁴ However, whether that result is a social harm or a positive good depends on matters in addition to simply winnowing the field of potential disputants, a point neglected by much of contemporary scholarship in civil procedure. That scholarship has had a laser-like focus on facilitating the bringing of claims, and in doing so makes two serious errors. It neglects that litigation is one small part of a larger social optimization problem, and has a peculiar conception of errors and costs and how they should be allocated. In this brief paper, I provide the analytical background to these assertions... [Read more!]

Viewed from the standpoint of strategic incentives, Rule 4(b) is the foundation of the Federal Rules of Civil Procedure: the state compels someone to appear in court and expend resources to move or answer without regard to the merit of the claims brought. Rule 4(b) is probably unconstitutional, but it is certainly bad policy and creates a distorted incentive structure. Twombly is a well-intentioned but misdirected attempt to fix this fundamental problem in the incentives created by the Federal Rules of Civil Procedure, but it focuses in the wrong place. The problem is created pre-service, and that is where it should be fixed... [Read more!]