Incentive awards to representative plaintiffs in class actions have been the focus of recent law reform efforts and have generated inconsistent case law. But little is known about such awards. This study of 374 opinions from 1993 to 2002 finds that awards were granted in about 28 percent of settled class actions. The rate of awards varied by case category as follows: consumer credit actions 59...
Backdoor Federalization
Two primary arguments are advanced for the contemporary functional importance of federalist constraints on centralized political power. The first is captured in Justice Brandeis's famous invocation of the states as the laboratories of democracy in which "a single courageous State" may blaze new paths by trying "novel social and economic experiments." The second ties the smaller, decentralized...
The Fairness Hearing: Adversarial and Regulatory Approaches
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...
Restitution, Rent Extraction, and Class Representatives: Implications of Incentive Awards
Sometimes, no news is good news. In an important article, Theodore Eisenberg and Geoffrey Miller add to the emerging literature that uses empirical research to shed light on the real-world operation of class action lawsuits. The conclusions that Eisenberg and Miller draw about incentive awards to class representatives are consistent with the conclusions of their previous study of class-counsel...
"Consulting" the Federal Sentencing Guidelines After Booker
In United States v. Booker, the U.S. Supreme Court held that the mandatory nature of the Federal Sentencing Guidelines violated the Sixth Amendment because they required a judge to enhance a defendant’s sentence based on facts that were neither found by a jury nor admitted by the defendant. The remedial portion of the opinion deemed the Guidelines “effectively advisory,” thereby permitting judges...
"We Decline to Address": Resolving the Unanswered Questions Left by Rojas v. Superior Court to Encourage Mediation and Prevent the Improper Shielding of Evidence
In Rojas v. Superior Court the California Supreme Court demonstrated its clear intent to encourage mediation by providing absolute privilege to evidence and materials “prepared for the purpose of, in the course of, or pursuant to, a mediation.” However, the Court declined to address the important question of how to determine when materials are prepared for mediation. The Court’s failure to...
Melville B. Nimmer Memorial Lecture: Deception and the First Amendment: A Central, Complex, and Somewhat Curious Relationship
Each year, the UCLA School of Law hosts the Melville B. Nimmer Memorial Lecture. Since 1986, the lecture series has served as a forum for leading scholars in the fields of copyright and First Amendment law. In recent years, the lecture has been presented by such distinguished scholars as Lawrence Lessig, Robert Post, Mark Rose, Kathleen Sullivan, and David Nimmer. The UCLA Law Review has...
Punishment and Accountability: Understanding and Reforming Criminal Sanctions in America
The vast majority of Americans favor sanctions that require offenders to engage in responsible behavior—to work, pay restitution, or support dependents; to participate in a mandatory job-training, literacy, or drug-treatment program; or to meet some other prosocial obligation. While this intuitive preference crosses political and ideological divides, nothing in our classical theories of...
The Fable of the Nationalist President and the Parochial Congress
One of the most widespread contemporary assumptions in the discourse of separation of powers is that while the president tends to have preferences that are more national and stable in nature, Congress is perpetually prone to parochial concerns. This deeply ingrained assumption not only pervades legal scholarly treatment of the administrative state, but it is also used to frame debates about the...
The Hidden Contradiction Within Insider Trading Regulation
Regulation of insider trading in the United States centers around two types of rules. The first and most publicized is the set of rules prohibiting “illegal” insider trading—trades based on material, nonpublic information. These laws are designed to increase investor confidence in the stock market by making the market seem fair and honest. However, the roughly 475,000 insider trades executed each...
Reflections on the Science and Law of Structural Biology, Genomics, and Drug Development
The Patent Act is now over a half-century old, and many observers have become concerned that it is not responsive to the needs of emerging industries or to the changing landscape of science. In this Article, we look at this issue in the context of the life sciences and examine how patent doctrine has reacted as the fields of proteomics, genomics, and structural biology have advanced. We find many...
Government Secrets, Constitutional Law, and Platforms for Judicial Intervention
American law has yet to reach a satisfying conclusion about public access to information on government operations. But recent events are prompting reconsideration of the status quo. As our current system is reassessed, three shortfalls in past debates should be overcome. The first involves ignorance of foreign systems. Other democracies grapple with information access problems, and their recent...
My Library: Copyright and the Role of Institutions in a Peer-to-Peer World
Today’s technology turns every computer—every hard drive—into a type of library. But the institutions traditionally known as libraries have been given special consideration under copyright law, even as commercial endeavors and filesharing programs have begun to emulate some of their functions. This Article explores how recent technological and legal trends are affecting public and school...
Reaffirming McClain: The National Stolen Property Act and the Abiding Trade in Looted Cultural Objects
The clandestine excavation of "cultural objects" to feed the international art market has become an indisputable problem. However, the scale of the problem—and potential solutions—are hotly contested. In the United States, the debate over how best to protect these objects has come to focus on the relationship between the National Stolen Property Act (NSPA) and the "found-in-the-ground" laws that...