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Long Shot Class Actions

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  • Schwartz, Warren F.
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    Abstract

    This paper considers the question whether plaintiffs, whose claims pose an important common issue, and are thought to be unlikely to prevail on this issue, should be permitted to maintain a class action in which this issue will be resolved or be required to litigate their claims in individual suits. The paper takes as its point of departure an opinion of Judge Richard Posner offering a novel and complex theoretical justification for requiring plaintiffs to proceed individually. This justification rests on ideas with respect to how claims thought to be unlikely to prevail should be viewed, how the risks created by legal uncertainty should be distributed and how decision making should be structured to take account of the different verdicts various juries might render with respect to identical cases. These ideas have very general and important implications. The paper concludes that Judge Posner's opinion suppresses important issues implicated by his analysis and that consideration of these issues leads to a view much more inclined to permit the class action to go forward than the one advanced by Judge Posner.

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    File URL: http://www.escholarship.org/uc/item/7fv8k94q.pdf;origin=repeccitec
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    Bibliographic Info

    Paper provided by Berkeley Olin Program in Law & Economics in its series Berkeley Olin Program in Law & Economics, Working Paper Series with number qt7fv8k94q.

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    Date of creation: 01 Jul 1999
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    Handle: RePEc:cdl:oplwec:qt7fv8k94q

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    1. Priest, George L, 1997. "Procedural versus Substantive Controls of Mass Tort Class Actions," The Journal of Legal Studies, University of Chicago Press, vol. 26(2), pages 521-73, June.
    2. Craswell, Richard & Calfee, John E, 1986. "Deterrence and Uncertain Legal Standards," Journal of Law, Economics and Organization, Oxford University Press, vol. 2(2), pages 279-303, Fall.
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