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...
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 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...
Of Groups, Class Actions, and Social Change: Reflections on From Medieval Group Litigation to the Modern Class Action
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.
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...
Teaching Twombly and Iqbal: Elements Analysis and the Ghost of Charles Clark
This is an edited version of remarks I gave January 24, 2013, at the UCLA Law Review Symposium honoring the contributions of Professor Steve Yeazell to the field of Civil Procedure.
Pleading and Access to Civil Justice: A Response to Twiqbal Apologists
Professor Stephen Yeazell once wrote, “A society based on the rule of law fails in one of its central premises if substantial parts of the population lack access to law enforcement institutions.”* One apparent threat to access to justice in recent years has been the erosion of notice pleading in the federal courts in favor of a plausibility-pleading system that screens out potentially meritorious...
Gateways and Pathways in Civil Procedure
Over the past thirty years, the U.S. Supreme Court and the Judicial Conference have modified the Federal Rules of Civil Procedure to address concerns that litigation costs too much, takes too long, and leads to unjust results. The Supreme Court’s opinions have focused primarily on fortifying what I refer to as the gateways of civil procedure— including motions to dismiss, motions for class...