Faculty Bibliography
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This casebook on the law of sexual orientation and gender identity weaves interdisciplinary perspectives into the up-to-date coverage of a rapidly changing legal landscape. It provides comprehensive coverage of the range of legal issues concerning LGBTQ persons, along with scholarly commentary on these issues. It also covers issues of sexuality and gender more broadly. It addresses in depth many significant recent developments, including the Supreme Court's landmark decision interpreting the Civil Rights Act of 1964 as prohibiting discrimination on the basis of gender identity and sexual orientation, and the growing set of religious liberty claims asserted by opponents of LGBTQ equality measures. The book also extensively covers gender identity issues, including the challenges faced by transgender individuals in accessing sex-segregated facilities, adequate healthcare, and equal educational and athletic opportunities.
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William Rubenstein, Alba Conte & Herbert B. Newberg, Newberg and Rubenstein on Class Actions (2022).
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The Roberts Court has sought to clarify the constitutional norms governing personal jurisdiction so as to give defendants greater certainty in arranging their business affairs. The Court’s effort has been guided by the implicit assumption that every personal jurisdiction case necessarily rises to the level of constitutional concern. But the only reason that most personal jurisdiction decisions raise constitutional concerns is because the vast majority of states maintain content-less long-arm statutes: in the complete absence of statutory norms, every instance of service of process poses a mini constitutional crisis. With no underlying statutory norms at issue, the Court’s constitutional decisions have long been legislating personal jurisdiction rules instead of adjudicating the constitutionality of legislatively enacted rules. The Court should fix this longstanding separation of powers problem by issuing a simple ruling: the Due Process Clause renders content-less long-arm statutes void for vagueness. That ruling would require state legislatures to enact laws specifying the situations in which service of process over non-residents was authorized. Personal jurisdiction litigation would then turn on statutory questions, with the Constitution held in reserve for particularly egregious power grabs. This approach would lead to differing outcomes in the two Ford Motor Company cases before the Court in the 2020-2021 Term: the Minnesota statute would fail for vagueness, while application of the Montana statute to Ford in the circumstances of that action would obviously not be so egregious as to rise to the level of a constitutional violation. One need not go so far as to say that the Due Process Clause has no role to play in the field of personal jurisdiction to appreciate that it should be cast in a supporting role far narrower than the leading part the Court has handed it for too long.
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Class action law is built on a model that assumes a large group of individuals have similar legal claims of such small value that no one of them has the incentive or ability to litigate alone. Rule 23 resolves that collective action problem by enabling one class member to represent the group, with a common fund fee award sharing the costs across the class. The Constitution guarantees class members the options of opting out (exit) or objecting (voice), but given the small stakes, most do nothing (loyalty). While elegant, this model does not capture the reality of all class suits. In many cases, some class members have significant enough legal claims that they are capable of litigating alone. The group dynamics accordingly change, with everything turning on the decisions of the large claimants: in some securities cases, they step forward to perform a monitoring function (voice) and often they simply remain passive (loyalty), but the central question is whether they will opt out and litigate separately in the hopes of maximizing their recovery (exit). The risk that they might deters defendants from settling the class’s small claims, lest they then have to litigate the large claimants’ valuable claims. But the risk simultaneously creates an opportunity: if the class could present a united front, a defendant would likely pay a premium to settle the whole package of claims. Heterogeneous classes can therefore suffer a problem akin to a prisoner’s dilemma: every class member might be best off if they could work together, but lacking a mechanism to do so, coordination costs render the option elusive. The tragedy of this commons is that, built on a different template, class action law offers class members only the three options of exit, voice, or loyalty. In this Article, we offer heterogeneous class members a fourth option: cooperation. Our proposed mechanism for harnessing claimants’ cooperative instincts is a new form of class certification that we call “negotiation class certification.” Under this approach, class members would work together to generate a metric for distributing a lump sum settlement across the class. They would then ask the court to certify a “negotiation class” and to direct notice to the class members informing them that counsel will negotiate a lump sum settlement and that, if achieved, the lump sum amount would be put to a vote, with a supermajority vote binding the class; the notice would also explain the distributional metric. Any class member that did not want to bind itself to either the distributional metric or the supermajority voting process could opt out. By establishing the contours of the class prior to settlement discussions, negotiation class certification would provide the defendant with a precise sense of the scope of finality a settlement would produce, hence encouraging a fulsome offer. The proposal is a novel use of Rule 23, but it is, in many ways, a less ambitious one than certification of a settlement class, although the latter approach, controversial at its inception, has been a “stock device” in class action practice for nearly a quarter century. And while novel, negotiation class certification is consistent with the requirements of both Rule 23 and the Constitution. Indeed, engaging large class members in the settlement negotiation process ex ante improves on a system that delegates that authority to agents and involves the class only ex post.
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This casebook on the law of sexual orientation and gender identity weaves interdisciplinary perspectives into the up-to-date coverage of a rapidly changing legal landscape. It provides comprehensive coverage of the range of legal issues concerning LGBT persons, along with scholarly commentary on these issues. It also covers issues of sexuality and gender more broadly. It addresses in depth many significant recent developments, including the Supreme Court's landmark decisions on marriage equality in Obergefell and Windsor, and the growing set of religious liberty claims asserted by opponents of LGBT equality measures. Gender identity issues are covered throughout the book.
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Courts reward attorneys for investing time in class action lawsuits more generously than they reward them for investing money in the costs of those suits. Class counsel may directly profit on time investments in two ways: by billing lawyers at market rates though paying those lawyers less and by receiving multiplied fee awards. Those same attorneys in those same situations may also recover their costs but courts may not — or at least do not — permit the attorneys either to mark up their costs or to receive cost multipliers. As cost profits are rarely even debated, there is no good defense of why they are unavailable, but one assumes that courts are less comfortable awarding attorneys a markup on their copying machine than they are for their legal work. The assumption that costs cannot be directly profitable appears therefore to belittle costs, relegating them to a secondary position in the fee and cost award analysis and treating them as something of a tagalong or afterthought. Our goal in this Article is to give costs their due. We describe current jurisprudence, demonstrating how, given a choice between investing profitable time or reimbursable costs, profit-maximizing attorneys will find time investment more attractive than cost investment. We then explore the effects of this bias, showing that because cost investments are not directly rewarded, profit-maximizing attorneys will predictably (1) avoid certain cases; (2) select suboptimal modes of proceeding within cases they do bring; and then (3) settle those cases prematurely. Assuming that conclusion is unfortunate, we consider and propose mechanisms for remedying it. While our proposals are initial and therefore tentative, our commitment to the project of centering costs is not: it is grounded in the belief that the legal system’s anti-cost-investment bias impedes access to justice for individuals whose claims can be established only with substantial cost investments by entrepreneurial lawyers. Centering costs — and considering measures as conventionally discouraged as permitting third parties to profit from cost investments — has the potential to serve a larger public good.
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Stephen Yeazell’s pathbreaking study of the history of group litigation revealed how disparate societies have shaped the rules of group litigation to meet their own needs. Professor Yeazell thereby demonstrated that procedural rules are socially contingent rather than universal in nature. In this Essay honoring Steve, I transform that lesson into a new approach to joinder rules. Specifically, I argue that if joinder rules arise out of specific social situations, then the simplest approach to joinder is to adopt a default rule calling for the shape of litigation to reflect the shape of the social activity that gave rise to the litigation. Labeling this concept “social loyalty,” I argue that it provides a new way of identifying what cases ought to be adjudicated in the aggregate and a new defense of their aggregation.
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William B. Rubenstein, Supreme Court Round-Up: Part II, 5 Class Action Att'y Fee Dig., Sept. 2011, at 331.
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Cited as persuasive authority in more than 600 federal and state court decisions, Newberg on Class Actions provides comprehensive, step-by-step coverage from pretrial through final resolution. The text focuses on the benefits of the class action, particularly in achieving judicial economy and in providing court access to small claimants who would otherwise be without judicial remedy. Newberg discusses fundamental characteristics, evolving controversies, and applying a theoretical framework to various areas of the law. It examines strategy, technique, agreements and settlements, torts, fees, constitutionality, and damages, and provides detailed analysis of various types of class actions involving: Antitrust Bankruptcy Consumer credit and fraud Intellectual property Shareholder derivative suits And more
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William B. Rubenstein, Benefits of Class Action Lawsuits, 4 Class Action Att'y Fee Dig., Nov. 2010, at 423.
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Class actions are among the most public forms of civil litigation, especially because a judge must review and approve a proposed class settlement following public notice and a public hearing. Ironically, however, a veil of secrecy can fall over class action litigation the moment the judge signs off on the agreement and ultimately, little information is available about how many class members actually received compensation and to what degree. This lack of transparency is especially troubling because of evidence that aggregate payments in class settlements sometimes constitute a mere fraction of the compensation fund extolled by the parties at the time of settlement review. This paper examines the extent to which claiming data are available and recommends ways to increase transparency in this area. We reviewed the official court files in a sample of 31 class action settlements and we also made direct inquiries to the judges, lawyers, and settlement administrators in another set of 57 cases. Searching through the case files and communicating with the participants, we were able to gain access to data in fewer than one of five closed cases. Despite the significant time and effort we put into the task, the final outcomes of four of five class action cases were beyond our discovery. It is not that the data are non-existent - claims administrators or parties certainly have them - it is, rather, that they are secreted away. The outcomes of publicly approved settlements lie locked in private files. We argue that this is a problem for three reasons: because the case outcomes might not be all that they purport to be; because the lessons that they could teach - for example, about which approaches work best - are lost to secrecy; and because the public record is unnecessarily incomplete and public access unnecessarily thwarted. We end the paper by proposing a set of solutions, including requiring parties to report back to the court on the final claiming data, publicizing this data, and creating a central repository for it.
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A class action can only bind class members who are “adequately represented,” and thus a class action court necessarily determines representational adequacy. But should class members who were not an active part of that proceeding be able to relitigate adequacy in a collateral forum at a later date so as to evade the binding effect of the class judgment? Courts and scholars have generated a bipolar response to that question, with one side arguing that full relitigation is required by the constitutional nature of the question and the other insisting that no relitigation is permitted because of the issue-preclusive effect of the class court’s holding. Despite the richness of this debate, myriad specific questions about the availability, substance, and procedural details of the relitigation opportunity remain unexamined. In this Article, Professor Rubenstein expands the conversation outward by comparing class action law’s approach to relitigation of adequacy of representation with habeas corpus’s approach to relitigation of ineffective assistance of counsel claims in criminal cases. Using two recent, seemingly unconnected Supreme Court cases—one from each field—as case studies, Professor Rubenstein explains how these cases in fact raise remarkably similar questions. Specifically, the comparison reveals that habeas provides a relatively clear, rule-based system that specifies when—and according to what procedural rules—relitigation is available. Professor Rubenstein concludes by arguing that there are lessons for class action law in habeas’s approach: a method for considering when relitigation is appropriate that avoids the extremes of either “always” or “never”; a rule system that helps identify issues (such as substantive standards, degrees of deference, burdens of proof, and defaults) that have yet to be carefully examined in class action law; and a template for balancing the competing policy concerns at issue. Without defending current habeas doctrine, and without pretending that habeas and class actions are overtly similar, the Article nonetheless demonstrates that class action law’s relitigation problem can learn something through a close look at criminal law’s relitigation solutions.
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At the conclusion of every class action lawsuit, a judge must hold a fairness hearing to assess the reasonableness of the outcome. The fairness hearing contains the promise of providing real monitoring of class counsel. In practice, it has not fulfilled this promise and scholars have largely, therefore, forsaken it. In this Article, William Rubenstein provides a sustained investigation of the fairness hearing, arguing that since it will inevitably take place, we ought to perfect not abandon it. To that end, he explores four types of mechanisms that might assist the judge at the fairness hearing: a devil’s advocate, employed by the court to argue against the settlement; bonds, posted by the settling parties and used to pay the attorneys’ fees of private objectors who raise valid concerns; labels, like food nutrition labels, compelled by a public agency to provide more transparency to the elements and quality of the settlement; and certification marks, like the Good Housekeeping Seal of Approval, created by an independent private group to signal class members and judges as to the adequacy of the settlement terms. Examining this new set of disparate proposals enables an assessment of the underlying question of institutional design: namely, whether adversarial or regulatory, public or private, approaches are likely to be most efficacious at identifying and curtailing problematic settlements and hence controlling class counsel. Given that at a fairness hearing a judge is charged with reviewing two distinct sets of concerns—the process by which the settlement was achieved and the content of the settlement in light of the strengths or weaknesses of the plaintiffs’ claims—Professor Rubenstein concludes that these roles require a combination of adversarial and regulatory approaches. For review of the substance and value of the class’s legal claims, adversarial presentation of issues is the preferred procedure and a judge the favored decisionmaker. For review of the settlement process, investigatory oversight is the needed procedure and an administrative inquisitor the ideal agent. The proposed settlement of a class action should trigger a two-part process involving both a judicial assessment of the value of the claims and a regulatory assessment of the process of settlement. Such an enriched proceeding holds the promise of providing meaningful constraints on class counsel.
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This Article appears in a Symposium commemorating the Supreme Court's decision in Phillips Petroleum Co. v. Shutts. The legal claims that gave rise to Shutts were meritorious, yet of relatively modest value. Individuals are unlikely to litigate such negative value claims because the costs of doing so outweigh the benefits they will receive; defendants are well-situated to escape liability. Conventionally, scholars describe this situation as posing a collective action problem and demonstrate how the class action mechanism works to solve that problem. In this Article, I discuss the problem of negative value claims in a related yet distinct manner. The fact that parties will not pursue these claims is, I argue, an example of the underproduction of a so-called public good. That good is a lawsuit. Litigation can be conceptualized as a public good, with its pursuit producing positive externalities. The Article enumerates these collateral social benefits, grouping them as: 1) decree effects; 2) settlement effects; 3) threat effects; and 4) institutional effects. The addition of this analysis to the scholarly literature serves several functions. Among these is that it illuminates how little collective action really takes places in small claims cases; how relatively unimportant the compensatory aspects of the case are compared to its other social functions; how the concept of deterrence does not capture these non-compensatory benefits as well as the concept of externalities does; and how small claims class actions are more like other types of class cases than generally presumed.
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Comments on the emergence of same sex marriage during the political debates of the presidential candidates in the U.S. Remark of the Democratic nominees concerning Mary Cheney, the lesbian daughter of Vice President Dick Cheney; Portrayal of hypocrisy by both parties; Contrast between the Cheney's support for his daughter and the president's policies.