Alexandra D. Lahav

Fundamental Principles for Class Action Governance

Class actions face a crisis of governance. The form of governance provided by Rule 23, governance by representative parties, is both vague in theory and ignored in practice. Instead, by a combination of procedural rules, judicial interpretation and common practice, the class is governed by a regime of attorney dictatorship with limited judicial oversight. This regime neither reflects the basic insight that the class and attorney do not have a traditional attorney-client relationship nor performs the task of transforming the inchoate collectivity of the class into an organization that protects and is responsive to the will of class members. This Article proposes an alternative regime of governance for 23(b)(3) small claims class actions that accomplishes both these things, based on four fundamental principles: mandatory disclosure of material information, an actively adversarial process, expertise of decision-makers and independence of decision-makers from influence and self-interest.

Do Judges Respond to Incentives? The Effects of the Six Month List

A little known mechanism instituted to improve judicial accountability and speed up the work of the federal judiciary has led to unintended consequences, many of them unfortunate. Federal district court judges are subject to a requirement known as the Six Month List. By law, every judge’s backlog (cases older than three years and motions pending more than six months) is made public twice a year. Since judges have life tenure and fixed salaries, a mere reporting requirement might not influence their behavior. But it does. Using the complete record of all federal civil cases between 1980 and 2017 and a hand-coded sample of summary judgment resolutions, we demonstrate that the List leads judges to close substantially more cases and decide more motions in the week immediately before it is compiled. While average motion processing time is shortened by 10 to 40 days, duration is actually lengthened for some motions (those for which the deadline is least pressing). Moreover, we find suggestive evidence that the List has substantive consequences: in an effort to comply with the List, judges may be making more errors. Theory suggests that giving judges an incentive for faster case processing is probably a mistake. But since this incentive is Congressionally mandated, we offer an alternative mechanism that will limit distortions until Congress acts to relieve the federal courts of this unnecessary burden.