UCLA Law Review Volume 53, Issue 6


"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 provide guidance on this issue may actually threaten its goal of encouraging mediation by allowing parties to use mediation as a forum for improperly shielding damaging evidence under the auspices of the mediation privilege. This Comment examines the dangers of the uncertainty left by the Rojas decision and proposes a solution that courts can adopt in order to ensure that the Court’s goal is realized, and that will allow parties to engage in mediation without fear that it will be used as a means to improperly shield evidence.

"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 to tailor defendants’ sentences in light of certain statutory factors. The Court, however, limited the scope of the advisory Guidelines regime by requiring judges to “consult those Guidelines and take them into account when sentencing.” The Booker opinion did not explain what it meant to “consult” the Guidelines, an omission that has led to a “discordant symphony” of sentencing approaches in the federal judiciary. In a criminal justice system in which sentencing helps legitimize our constitutional order, few have attempted to articulate a comprehensive framework explaining how the newly advisory Guidelines should operate in a post-Booker world. In order to provide guidance to the federal judges who sentence over 65,000 defendants each year, this Comment aims to create such a framework by utilizing existing constitutional doctrine. More specifically, I argue that a rubric for understanding the advisory role of the Guidelines can be articulated using the language of rational basis, strict scrutiny, and intermediate scrutiny standards of review. After examining the deficiencies of the rational basis and strict scrutiny approaches, I conclude that an intermediate scrutiny model for understanding the advisory Guidelines system would provide the proper balance between Congress’s intent in formulating a uniform sentencing system and Booker’s requirement that the Guidelines not act as a mandatory constraint on judges.

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 fee awards. The major point they make regarding both types of awards is easily stated: The patterns in both class-counsel fee awards and incentive awards to class representatives do not deviate dramatically from the respective justifications for those awards. As Eisenberg and Miller carefully note, this observation remains constrained by the available data from the corpus of reported decisions that serve as the basis for both of their studies. Even with this caveat, the good news is that there is no news. Reported awards are inconsistent with narratives of lawyer demands or judicial discretion run wild. This Essay focuses on the implications from the Eisenberg and Miller data on incentive awards. My organizing concept involves a comparison implicit in the two empirical studies that Eisenberg and Miller have completed thus far. My suggestion is that we may organize our thinking about what to make from the data on incentive awards by comparing the observations on that subject with the world of class-counsel fee awards.

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 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.

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 scale of subnational units to a more robust democratic accountability, by which “government is brought closer to the people, and democratic ideals are more fully realized.” This Article is largely about circumstances in which these two arguments for federalism fail. The question that concerns us is what happens when one state’s experimentation poses “risks to the rest of the country,” in the form of spillover effects that adversely affect citizens of other states. In such circumstances, not only may the benefits of heterogeneity fail, but also the citizens of other states are deprived of the political means of compelling democratic accountability on economic actors shielded by other states’ claims of sovereignty. In this Article, we address the emergence of partial federalization of areas historically governed by state law. Our approach is to think of the battles over federalism as running across two dimensions. The more familiar is the question of which law controls, state or federal. But a second dimension is the battle over which forum should control, state or federal, and which is to be the catalyst for new legal norms. Focusing on the rise of federal preemption of state law, on the expansion of the federal forum through federal question subject matter jurisdiction or the newly minted Class Action Fairness Act, and on the constitutional override of matters formally assigned to state law, such as punitive damages, we hope to highlight and explain a quiet federalization of vital areas of law—one far less noticed than the heavily (and perhaps overly) publicized limitations on federal regulation of internal matters of state governance. Our main argument is that the U.S. Supreme Court has, in preemption and forum allocation cases, attempted to capture the considerable benefits that flow from national uniformity and to protect an increasingly unified national (and international) commercial market from the imposition of externalities by unfriendly state legislation. We hope to give a broader rendition of the legal response to market pressures toward predictability and uniformity than would emerge from a narrow focus on formal constitutional doctrine. We also aim to underscore aspects of “horizontal federalism”—namely, policing relations between the states—that have tended to be obscured by the looming shadow of “vertical federalism”—namely, the balance of power and division of labor between federal and state sources of authority.

Incentive Awards to Class Action Plaintiffs: An Empirical Study

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 percent, employment discrimination cases 46 percent, antitrust cases 35 percent, securities cases 24 percent (before the Private Securities Litigation Reform Act of 1995 limited awards), and corporate and mass tort actions less than 10 percent. The decision to grant an incentive award was associated with increased awards of attorneys’ costs and expenses (our proxy for representative-plaintiff costs) in relation to median class-member recoveries and with the case being in federal court. When given, incentive awards constituted, on average, 0.16 percent of the class recovery, with a median of 0.02 percent. Award levels varied by case category. Employment discrimination cases had large incentive awards compared to other categories. Award size was associated with the case’s costs and expenses, the class recovery amount, the median recovery per class member, the case’s risk, and the presence of objection to the settlement. Awards exhibited a scaling effect; their percentage of the class recovery decreased as the class recovery increased. We examine the data in light of four hypotheses about the function of incentive awards: (1) reimbursing class representatives for nonpecuniary litigation costs; (2) rewarding class representatives for superior service; (3) facilitating self-interested behavior by class counsel; and (4) achieving proportionality between awards and other outcomes in the case. We find support for the reimbursement and proportionality hypotheses and weaker support for the attorney self-interest and reward-for-service hypotheses. We find little evidence of systematic abuse in incentive awards. Given the modest frequency and size of awards, and their possible benefits, case-by-case adjudication may be more appropriate than fixed legislative or judicial rules banning awards.