In this brief commentary celebrating Professor Yeazell’s scholarship, I reflect on his seminal book on the medieval roots of group litigation in the light of global developments and technological change.
Procedure and Society: An Essay for Steve Yeazell
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...
What Evidence Scholars Can Learn From the Work of Stephen Yeazell: History, Rulemaking, and the Lawyer’s Fundamental Conflict
This short Essay draws three lessons for evidence scholars from Stephen Yeazell’s justly celebrated work in civil procedure. The first lesson is to take history seriously but to be realistic about what it can tell us: to use history to gain perspective, not to recover lost wisdom. The second lesson is to take rulemaking seriously: to think about the processes through which evidence rules are...
Procedure, Substance, and Power: Collective Litigation and Arbitration Under the Labor Law
In this contribution to the Symposium honoring Stephen Yeazell, the author explores the interaction between group litigation and social context in the contemporary setting. She traces the recent law of class action waivers coupled with mandatory individual arbitration clauses in consumer and employment contracts. She shows how the Supreme Court’s decisions in AT&T v. Concepcion and American...
Re-Re-Financing Civil Litigation: How Lawyer Lending Might Remake the American Litigation Landscape, Again
Stephen Yeazell has long recognized that changes to case capitalization affect the nature and intensity of civil litigation. So too, writing back in 2001, Yeazell identified the next wave of capital with the capacity to alter the American litigation landscape: third-party litigation finance. In the ensuing decade, that industry, and specifically what I call the “lawyer lending” industry—comprised...
Complexity, the Generation of Legal Knowledge, and the Future of Litigation
The central problem of rationality is to tame and domesticate the overwhelming complexity the human mind faces in its efforts to survive and thrive in a complex, unpredictable, and hostile universe. Much of the history of the human race is essentially the story of its expanding capacity to do just that, and the survival benefits that this process has bestowed on the species. Legal systems in...
Regulation by Liability Insurance: From Auto to Lawyers Professional Liability
Liability insurers use a variety of tools to address adverse selection and moral hazard in insurance relationships. These tools can act on insureds in a manner that can be understood as regulation. We identify seven categories of such regulatory activities: risk-based pricing, underwriting, contract design, claims management, loss prevention services, research and education, and engagement with...
When Courts Determine Fees in a System With a Loser Pays Norm: Fee Award Denials to Winning Plaintiffs and Defendants
Under the English rule, the loser pays litigation costs whereas under the American rule, each party pays its own costs. Israel instead vests in its judges full discretion to assess fees and costs as the circumstances may require. Both the English and the American rules have been the subjects of scholarly criticism. Because little empirical information exists about how either rule functions in...