Civil Procedure

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Comment
Volume 92.4
Injury Equity: The Rise of Future Stakes Settlements
Margaret Schaack
B.S. 2018, Georgetown University; J.D. Candidate 2026, The University of Chicago Law School.

I would like to thank Professor Anup Malani, Professor Jared Mayer, and the editors and staff of the University of Chicago Law Review for their thoughtful input and careful review.

The latest development in class action litigation is the “future stakes settlement.” Under this novel mechanism, unveiled in the settlement proposal to end a privacy law class action lawsuit against the startup Clearview AI, a defendant grants a privately traded equity stake to the class in exchange for a release of all claims.

Future stakes settlements, though similar to existing mechanisms in class action and bankruptcy law, offer distinct benefits and costs. Through a future stakes settlement, the class may recover against a cashless defendant and receive a larger payout than would be possible through a traditional cash damages fund. But this recovery is uncertain, as the value of a future stake can fluctuate. Furthermore, by transforming injured parties into shareholders, future stakes settlements pose serious moral quandaries.

Existing guidance for settlement agreements under Federal Rule of Civil Procedure 23(e) is insufficient to handle the high degree of risk associated with future stakes settlements. This Comment recommends additional standards that courts should apply when evaluating these settlements. Through these additions, courts can prevent defendant gamesmanship, ensure future stakes settlements are fair to the class, and fulfill the dual purposes of compensation and regulation in class actions.

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Response
Opening Up Intervention to Check Agency Costs
Stephanos Bibas
Stephanos Bibas is a judge on the U.S. Court of Appeals for the Third Circuit and a Senior Fellow at the University of Pennsylvania Law School.

He thanks his clerks Nathan Pinnell and Isabella Soparkar for outstanding research assistance.

Professor Monica Haymond’s Intervention and Universal Remedies article invites scholars to focus on the distinctive ways that public law litigation plays out in practice. This Essay takes up her challenge. By questioning common assumptions at the core of structural-reform litigation, this Essay explains the dangers of consent decrees, settlements, and broad precedents. It then goes on to argue that intervention is an important check on these risks, and should be much more freely available in structural reform cases.

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Article
Volume 91.7
Intervention and Universal Remedies
Monica Haymond
Assistant Professor of Law, Northwestern Pritzker School of Law.

For helpful comments and discussions on this Article, I am thankful to Payvand Ahdout, Rachel Bayefsky, Judge Stephanos Bibas, Josh Bowers, Upnit K. Bhatti, Sergio Campos, Maureen Carroll, Guy-Uriel Charles, Zachary Clopton, I. Glenn Cohen, Ryan Doerfler, Richard Fallon, Jonathan Gould, James Greiner, Andrew Hammond, Judge Adalberto Jordan, Brian Lipshutz, Caleb Nelson, Andrea Olson, Richard Re, William Rubenstein, Stephen Sachs, Joanna Schwartz, David Simon, Susannah Tobin, and the participants in workshops at Harvard Law School, the Annual Civil Procedure Workshop, the American Constitution Society Junior Scholars Public Law Workshop, the Junior Faculty Federal Courts Workshop, and the Association of American Law Schools Remedies Workshop. I am also grateful to the editors of the University of Chicago Law Review for their invaluable editorial assistance.

This Article examines over 500 nationwide-injunction cases and shows that a surprising participant is influencing the result: an outsider who has joined as an intervenor. Judicial discretion over intervention functionally gives courts control over how nationwide-injunction cases proceed, or whether they proceed at all. With few principles guiding that discretion, procedural rulings can appear to be influenced by the court’s own political leanings, undermining public confidence in the court’s decision on the merits. This Article represents the first scholarly examination of the significant role that intervention plays in nationwide-injunction suits. More broadly, this Article uses intervention to explore the function of procedural rules and the federal courts in a democratic system. Finally, this Article offers two reforms that would promote procedural values and cabin the role of the federal courts in ideological litigation.

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U.S. v. Kordel, Parallel Proceedings, and the Value of Statistical Freedom
George Vojta
George Vojta is a J.D. Candidate at the University of Chicago Law School, Class of 2025, and a Ph.D. Candidate in Economics at the University of Chicago.

The author thanks his parents Deneen and Chris Vojta, his siblings, Charles and Grace Vojta, Shiri Gross, Judge Thomas L. Kirsch II, and the University of Chicago Law Review Online team.

This Essay proposes using the dilemma defendants face in parallel proceedings as a way to measure the Value of Statistical Freedom (VSF). The VSF (sometimes called the Value of Liberty) can be thought of as an individual’s willingness to pay to not be in prison. The VSF is spiritually similar to the far more prevalent “Value of Statistical Life” (VSL), which measures the willingness to trade money or wealth in exchange for an increase in the mortality probability.

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Comment
Volume 89.4
The Exception to Rule 12(d): Incorporation by Reference of Matters Outside the Pleadings
Laura Geary
B.A. 2018, Swarthmore College; J.D. Candidate 2023, The University of Chicago Law School

I thank Professor William H.J. Hubbard for his expert guidance and thoughtful feedback as well as the editors of the University of Chicago Law Review

This Comment explores the history of Rule 12(d), describes courts’ varying uses of the exception, and proposes a unifying method of interpretation for the future. Drawing on other procedural rules and an analogous doctrine in contract law, it argues that only unmistakably referenced written instruments may be incorporated.

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Article
Volume 89.1
Civil Procedure as the Regulation of Externalities: Toward a New Theory of Civil Litigation
Ronen Avraham
Professor of Law, Tel Aviv University Faculty of Law; Lecturer, University of Texas at Austin School of Law
William H.J. Hubbard
Professor of Law, The University of Chicago Law School.

We are grateful for comments from Lynn Baker, Bob Bone, Alon Klement, Shay Lavie, Jay Tidmarsh, Diego Zambrano, and participants at the Law Faculty Workshops at the University of Chicago, the University of Notre Dame, Tel Aviv University, and the University of Texas, as well as the ALEA Annual Meetings. We thank Ramon Feldbrin, Kathryn Garcia, Sakina Haji, Deanna Hall, Adam Picker, Jill Rogowski, and Kelly Yin for valuable research assistance. William Hubbard thanks the Paul H. Leffmann Fund and the Jerome F. Kutak Faculty Fund for research support. An earlier version of this Article was titled “Procedural Flexibility in Three Dimensions.”

Civil procedure serves a multitude of goals, from regulating the cost of fact gathering to dictating the rules of advocacy in court to promoting public participation in trials. To what extent can procedural design serve them all, or must rules sacrifice some interests to serve others? In this Article, we are the first to introduce a theory of procedural design that answers this question.

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Comment
v88.4
Removing Interpretative Barnacles: Counterclaims and Civil Forfeiture
Nicholas Hallock
B.A. 2017, Columbia University; J.D. Candidate 2022, The University of Chicago Law School

Thanks to Professor William Hubbard and Ramon Feldbrin for thoughtful feedback.

The Pueblo of Pojoaque is a Native American tribe in northern New Mexico. Its reservation has a population of 2,712, and, like many tribes, the Pueblo of Pojoaque operates multiple casinos and resorts.

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Essay
v88.2
Classaction.gov
Amanda M. Rose
Professor of Law, Vanderbilt University Law School.

For helpful comments and conversations, I would like to thank Lynn Baker, Ben Berry, Brian Broughman, Elizabeth Cabraser, Brian Fitzpatrick, Todd Hilsee, Lee Kovarsky, Craig Lewis, Debbie Matties, Robert Mikos, David Siffert, Charlie Silver, Randall Thomas, Yesha Yadav, participants and panelists at the FTC’s workshop on Consumers and Class Action Notices, participants at Vanderbilt Law School’s 22nd Annual Law & Business Conference, and students enrolled in the University of Texas’s Colloquium on Current Issues in Complex Litigation. I am grateful to Regan Vicknair for excellent research assistance.

Class actions, brought on an opt-out basis under Federal Rule of Civil Procedure 23(b)(3) and state analogues, are highly controversial.

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Article
87.8
Exporting American Discovery
Yanbai Andrea Wang
Assistant Professor of Law, University of Pennsylvania Carey Law School.

For generous conversations and comments, I am grateful to Aziza Ahmed, Kevin Benish, Pamela Bookman, Beth Burch, Guy‑Uriel Charles, Kevin Clermont, Zachary Clopton, Brooke Coleman, William Dodge, David Engstrom, Nora Engstrom, George Fisher, Maggie Gardner, Myriam Gilles, Jasmine Harris, Larry Helfer, Deborah Hensler, Aziz Huq, Mark Kelman, Amalia Kessler, Tim Lovelace, Rick Marcus, Doug Melamed, Jenny Martinez, Anne O’Connell, Katerina Ossenova, Aaron Simowitz, Shirin Sinnar, David Sklansky, David Sloss, Norman Spaulding, Al Sykes, Justin Weinstein-Tull, Steve Yeazell, Diego Zambrano, as well as participants at the American Society of International Law Research Forum, Annual Civil Procedure Workshop, Bay Area Civil Procedure Forum, Emerging Scholars Workshop, Grey Fellows Forum, Junior Faculty Federal Courts Workshop, Northern California International Law Scholars Workshop, “The Extraterritorial State” Symposium at Willamette, and workshops at UC Berkeley, Boston College, Cardozo Law, Cornell, UC Davis, Duke, Emory, the University of Florida, Fordham, Georgetown, the University of Michigan, the University of Pennsylvania, and the University of Virginia. For exceptional research assistance, I thank Alexis Abboud, Douglas Callahan, Wesley DeVoll, Jeffrey Ho, Aletha Dell Smith, Sam Sherman, and Leonardo Villalobos. Thanks also to the thoughtful editors of The University of Chicago Law Review.

Across the country, federal courts now routinely have a hand in the resolution of foreign civil disputes. They do so by compelling discovery in the United States—typically as much discovery as would be available for a lawsuit adjudicated in federal district court—and making it available for use in foreign civil proceedings governed by different procedural rules.