We survey public pension funds and report on their litigation and non-litigation activism. We report that activity levels vary, dramatically. Although some funds engage in a substantial amount of governance activity, a significant number do little or nothing. Public pension funds engage in a very limited spectrum of non-litigation activities, involving primarily low visibility activities such as participation in corporate governance organizations or withholding votes from a management nominee. Funds with more assets under management are far more active in non-litigation activism. Similarly, funds that devote more resources generally to in-house activities are also more active in non-litigation activism. A marked difference exists for litigation activism. Public pension fund participate much more extensively in shareholder litigation than in other governance activities. Despite the importance of asset size for participation levels, we also find that for litigation-related activism, smaller funds participate with equal frequency.
{"title":"On Beyond CalPERS: Survey Evidence on the Developing Role of Public Pension Funds in Corporate Governance","authors":"Stephen Choi, Jill E. Fisch","doi":"10.2139/SSRN.1010330","DOIUrl":"https://doi.org/10.2139/SSRN.1010330","url":null,"abstract":"We survey public pension funds and report on their litigation and non-litigation activism. We report that activity levels vary, dramatically. Although some funds engage in a substantial amount of governance activity, a significant number do little or nothing. Public pension funds engage in a very limited spectrum of non-litigation activities, involving primarily low visibility activities such as participation in corporate governance organizations or withholding votes from a management nominee. Funds with more assets under management are far more active in non-litigation activism. Similarly, funds that devote more resources generally to in-house activities are also more active in non-litigation activism. A marked difference exists for litigation activism. Public pension fund participate much more extensively in shareholder litigation than in other governance activities. Despite the importance of asset size for participation levels, we also find that for litigation-related activism, smaller funds participate with equal frequency.","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2007-09-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68123053","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Chief judges wield power. Among other things, they control judicial assignments, circulate petitions to their colleagues, and manage internal requests and disputes. When exercising this power, do chiefs seek to serve as impartial court administrators or do they attempt to manufacture case outcomes that reflect their political beliefs? Because chiefs exercise their power almost entirely outside public view, no one knows. No one sees the chief judge change the composition of a panel before it is announced or delay consideration of a petition for en banc review or favor the requests of some colleagues while ignoring those of others. Chiefs do exercise one very public power, however. Chiefs decide when to step down and return to active service, and because their dates of departure determine who will succeed them, they decide who their successors will be. If chiefs are impartial administrators, their departure decisions should not lead systematically to successors who share their political beliefs; if, by contrast, they are purely political actors, their departures should be timed to ensure like-minded successors. Relying on a database that includes all chief circuit judges, we test a strategic departure theory of chief judge tenure. We find little evidence of political motivations. We find instead that chief judges serve shorter terms as dockets grow larger; thus, overwhelming workload may prevent judges from using the office to further policy goals.
{"title":"Chief Judges: The Limits of Attitudinal Theory and Possible Paradox of Managerial Judging","authors":"Tracey E. George, Albert H. Yoon","doi":"10.2139/SSRN.1001247","DOIUrl":"https://doi.org/10.2139/SSRN.1001247","url":null,"abstract":"Chief judges wield power. Among other things, they control judicial assignments, circulate petitions to their colleagues, and manage internal requests and disputes. When exercising this power, do chiefs seek to serve as impartial court administrators or do they attempt to manufacture case outcomes that reflect their political beliefs? Because chiefs exercise their power almost entirely outside public view, no one knows. No one sees the chief judge change the composition of a panel before it is announced or delay consideration of a petition for en banc review or favor the requests of some colleagues while ignoring those of others. Chiefs do exercise one very public power, however. Chiefs decide when to step down and return to active service, and because their dates of departure determine who will succeed them, they decide who their successors will be. If chiefs are impartial administrators, their departure decisions should not lead systematically to successors who share their political beliefs; if, by contrast, they are purely political actors, their departures should be timed to ensure like-minded successors. Relying on a database that includes all chief circuit judges, we test a strategic departure theory of chief judge tenure. We find little evidence of political motivations. We find instead that chief judges serve shorter terms as dockets grow larger; thus, overwhelming workload may prevent judges from using the office to further policy goals.","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2007-07-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68119555","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2007-03-01DOI: 10.1093/acprof:oso/9780199660643.003.0010
E. Weinrib
Legal education exists at the confluence of three activities that reciprocally affect one another: legal practice, the enterprise of understanding that practice, and university study. The disjunction between legal practice and university study has been criticised for its attendant disservice to the legal profession. This article argues that the disjunction arises out of the different understandings of law that animate legal practice and contemporary university study. Focussing on private law and using the example of economic analysis, the article underlines the role of instrumentalist understandings of law in mischaracterizing legal practice. It also sketches a different mode of legal understanding that both respects legal practice and affirms private law as a component of our intellectual inheritance worthy of university study in its own terms. Finally, the article discusses the use of nuisance cases in Coase's famous article on social cost, in order to show the shortcomings of the current conception of interdisciplinary study. By marking out the distinctive mode of thinking and discourse in law, the author points to a conception of the core of legal education that links the three activities of practice, understanding, and university study.
{"title":"Can Law Survive Legal Education","authors":"E. Weinrib","doi":"10.1093/acprof:oso/9780199660643.003.0010","DOIUrl":"https://doi.org/10.1093/acprof:oso/9780199660643.003.0010","url":null,"abstract":"Legal education exists at the confluence of three activities that reciprocally affect one another: legal practice, the enterprise of understanding that practice, and university study. The disjunction between legal practice and university study has been criticised for its attendant disservice to the legal profession. This article argues that the disjunction arises out of the different understandings of law that animate legal practice and contemporary university study. Focussing on private law and using the example of economic analysis, the article underlines the role of instrumentalist understandings of law in mischaracterizing legal practice. It also sketches a different mode of legal understanding that both respects legal practice and affirms private law as a component of our intellectual inheritance worthy of university study in its own terms. Finally, the article discusses the use of nuisance cases in Coase's famous article on social cost, in order to show the shortcomings of the current conception of interdisciplinary study. By marking out the distinctive mode of thinking and discourse in law, the author points to a conception of the core of legal education that links the three activities of practice, understanding, and university study.","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2007-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60652286","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2006-12-20DOI: 10.1093/acprof:oso/9780199917723.003.0003
Paul H. Robinson, Robert Kurzban, Owen D. Jones
Contrary to the common wisdom among criminal law scholars, empirical evidence reveals that people's intuitions of justice are often specific, nuanced, and widely shared. Indeed, with regard to the core harms and evils to which criminal law addresses itself-physical aggression, takings without consent, and deception in transactions-the shared intuitions are stunningly consistent across cultures as well as demographics. It is puzzling that judgments of moral blameworthiness, which seem so complex and subjective, reflect such a remarkable consensus. What could explain this striking result? The authors theorize that one explanation may be an evolved predisposition toward these shared intuitions of justice, arising from the advantages that they provided, including stability, predictability, and the facilitation of beneficial exchange-the cornerstones to cooperative action and its accompanying survival benefits. Recent studies in animal behavior and brain science are consistent with this hypothesis, suggesting that moral judgment not only has biological underpinnings, but also reflects the effects of evolutionary processes on the distinctly human mind. Similarly, the child development literature provides evidence of predictable stages in the development of moral judgment within each individual, from infancy through adulthood, that are universal across all demographics and cultures. The current evidence does not preclude alternative explanations. Shared views of justice might arise, for example, through general social learning. However, a social learning explanation faces a variety of difficulties. It assumes that individuals will adopt norms good for the group at the expense of self-interest. It assumes an undemonstrated human capacity to assess extremely complex issues, such as what will be an efficient norm. It predicts that the significant variation in circumstances among different groups would give rise to commensurately different norms and variation in the effectiveness of teaching them. It is inconsistent with the developmental data that show intuitions of justice appearing early, before social learning of such complexity is possible. And, finally, a general social learning explanation predicts views of justice as accessible, reasoned knowledge, rather than the inaccessible, intuitive knowledge that we know them commonly to be. Whatever the correct explanation for the consensus puzzle, intuitions of justice seem to be an inherent part of being human and this, in turn, can have important implications for criminal law and criminal justice policy.
{"title":"The Origins of Shared Intuitions of Justice","authors":"Paul H. Robinson, Robert Kurzban, Owen D. Jones","doi":"10.1093/acprof:oso/9780199917723.003.0003","DOIUrl":"https://doi.org/10.1093/acprof:oso/9780199917723.003.0003","url":null,"abstract":"Contrary to the common wisdom among criminal law scholars, empirical evidence reveals that people's intuitions of justice are often specific, nuanced, and widely shared. Indeed, with regard to the core harms and evils to which criminal law addresses itself-physical aggression, takings without consent, and deception in transactions-the shared intuitions are stunningly consistent across cultures as well as demographics. It is puzzling that judgments of moral blameworthiness, which seem so complex and subjective, reflect such a remarkable consensus. What could explain this striking result? The authors theorize that one explanation may be an evolved predisposition toward these shared intuitions of justice, arising from the advantages that they provided, including stability, predictability, and the facilitation of beneficial exchange-the cornerstones to cooperative action and its accompanying survival benefits. Recent studies in animal behavior and brain science are consistent with this hypothesis, suggesting that moral judgment not only has biological underpinnings, but also reflects the effects of evolutionary processes on the distinctly human mind. Similarly, the child development literature provides evidence of predictable stages in the development of moral judgment within each individual, from infancy through adulthood, that are universal across all demographics and cultures. The current evidence does not preclude alternative explanations. Shared views of justice might arise, for example, through general social learning. However, a social learning explanation faces a variety of difficulties. It assumes that individuals will adopt norms good for the group at the expense of self-interest. It assumes an undemonstrated human capacity to assess extremely complex issues, such as what will be an efficient norm. It predicts that the significant variation in circumstances among different groups would give rise to commensurately different norms and variation in the effectiveness of teaching them. It is inconsistent with the developmental data that show intuitions of justice appearing early, before social learning of such complexity is possible. And, finally, a general social learning explanation predicts views of justice as accessible, reasoned knowledge, rather than the inaccessible, intuitive knowledge that we know them commonly to be. Whatever the correct explanation for the consensus puzzle, intuitions of justice seem to be an inherent part of being human and this, in turn, can have important implications for criminal law and criminal justice policy.","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2006-12-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81207607","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
A specter is haunting America, the specter of agricultural supremacy. Farm advocates have protested the decline of agriculture as an autonomous enterprise. After centuries of producer primacy, the agrarian state is withering away in the face of the reality that putting farmers first puts consumer and environmental interests last. Karl Marx condemned the German Ideology as the fallacy that civilization begins with any step besides the acquisition of food, fiber, and fuel. The American Ideology is the fallacy that civilization ends upon the acquisition of food, fiber, and fuel. Bourgeois yearning to be delivered from necessity into freedom has catapulted America into world dominance. Agrarian discontent amid material abundance proves that American agriculture is not Marxist enough. All hitherto existing law reflects the history of agrarian class struggle. The legislative explosion of 1862 gave farmers direct subsidies and access to the highest levels of government. But this success destroyed farmers' cultural and economic independence. What is true of evolutionary biology is also true of agricultural economics: the same Red Queen that stalks species in an evolving ecosystem pushes farmers first to adapt or die and eventually to adapt and die. Stasis is the agroecological opium of the masses. The only value held dear by the American Ideologue is maximizing the market for the labor of agriculture's entrepreneurial class. Consumer health, social wealth, and environmental integrity are all secondary. Come the revolution, a new bourgeois populism will restore the middle-class masses to their proper supremacy over pampered producers. America should treat agriculture like any other industry, as subject as toilet manufacturers to the fickle fluctuations of consumer demand. Behold the Consumerist Manifesto: Let farmers classes tremble at the feet of competition. Bourgeois consumers have nothing to lose but their bucolic illusions. They have a world to win.
{"title":"The American Ideology","authors":"J. Chen","doi":"10.4324/9781315021201-7","DOIUrl":"https://doi.org/10.4324/9781315021201-7","url":null,"abstract":"A specter is haunting America, the specter of agricultural supremacy. Farm advocates have protested the decline of agriculture as an autonomous enterprise. After centuries of producer primacy, the agrarian state is withering away in the face of the reality that putting farmers first puts consumer and environmental interests last. Karl Marx condemned the German Ideology as the fallacy that civilization begins with any step besides the acquisition of food, fiber, and fuel. The American Ideology is the fallacy that civilization ends upon the acquisition of food, fiber, and fuel. Bourgeois yearning to be delivered from necessity into freedom has catapulted America into world dominance. Agrarian discontent amid material abundance proves that American agriculture is not Marxist enough. All hitherto existing law reflects the history of agrarian class struggle. The legislative explosion of 1862 gave farmers direct subsidies and access to the highest levels of government. But this success destroyed farmers' cultural and economic independence. What is true of evolutionary biology is also true of agricultural economics: the same Red Queen that stalks species in an evolving ecosystem pushes farmers first to adapt or die and eventually to adapt and die. Stasis is the agroecological opium of the masses. The only value held dear by the American Ideologue is maximizing the market for the labor of agriculture's entrepreneurial class. Consumer health, social wealth, and environmental integrity are all secondary. Come the revolution, a new bourgeois populism will restore the middle-class masses to their proper supremacy over pampered producers. America should treat agriculture like any other industry, as subject as toilet manufacturers to the fickle fluctuations of consumer demand. Behold the Consumerist Manifesto: Let farmers classes tremble at the feet of competition. Bourgeois consumers have nothing to lose but their bucolic illusions. They have a world to win.","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2006-10-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70622954","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
International tribunals prosecuting those responsible for genocide, crimes against humanity, and war crimes face many of the same resource constraints that bedevil national criminal justice systems. Consequently, international tribunals have begun to utilize various procedural devices long used by national prosecutors to speed case dispositions. One such procedural device is the guilty plea. National prosecutors induce criminal defendants to plead guilty and waive their rights to trial through a process of plea bargaining; that is, by offering defendants sentencing concessions in exchange for their guilty pleas. International prosecutors who seek to engage in plea bargaining, however, face a host of impediments unknown to domestic prosecutors. Most important of these is that some groups of international defendants do not significantly value the sentencing concessions that form the heart of plea bargaining in national criminal justice systems. This Article explores the role of sentencing discounts in the guilty-plea decisions of international defendants, and it reveals that while sentencing discounts play the primary role in influencing Western defendants charged with domestic crimes to plead guilty, those same discounts often have relatively little effect on the guilty-plea decisions of various groups of international defendants. Indeed, whether the prospect of sentence leniency will motivate an international defendant to plead guilty depends on a number of eclectic and sometimes unexpected factors, including the nature of the crime, the nature of the prosecutorial selection process, the background of defense counsel, the status and education of the defendants, and the defendants' cultural views about crime and its appropriate punishment. The study in its entirety reveals that the wholesale transplantation of plea bargaining practices that successfully procure guilty pleas in the context of domestic prosecutions is likely to prove inefficient and ineffective in the context of many international prosecutions.
{"title":"Procuring Guilty Pleas for International Crimes: The Limited Influence of Sentencing Discounts","authors":"N. Combs","doi":"10.2139/SSRN.2079100","DOIUrl":"https://doi.org/10.2139/SSRN.2079100","url":null,"abstract":"International tribunals prosecuting those responsible for genocide, crimes against humanity, and war crimes face many of the same resource constraints that bedevil national criminal justice systems. Consequently, international tribunals have begun to utilize various procedural devices long used by national prosecutors to speed case dispositions. One such procedural device is the guilty plea. National prosecutors induce criminal defendants to plead guilty and waive their rights to trial through a process of plea bargaining; that is, by offering defendants sentencing concessions in exchange for their guilty pleas. International prosecutors who seek to engage in plea bargaining, however, face a host of impediments unknown to domestic prosecutors. Most important of these is that some groups of international defendants do not significantly value the sentencing concessions that form the heart of plea bargaining in national criminal justice systems. This Article explores the role of sentencing discounts in the guilty-plea decisions of international defendants, and it reveals that while sentencing discounts play the primary role in influencing Western defendants charged with domestic crimes to plead guilty, those same discounts often have relatively little effect on the guilty-plea decisions of various groups of international defendants. Indeed, whether the prospect of sentence leniency will motivate an international defendant to plead guilty depends on a number of eclectic and sometimes unexpected factors, including the nature of the crime, the nature of the prosecutorial selection process, the background of defense counsel, the status and education of the defendants, and the defendants' cultural views about crime and its appropriate punishment. The study in its entirety reveals that the wholesale transplantation of plea bargaining practices that successfully procure guilty pleas in the context of domestic prosecutions is likely to prove inefficient and ineffective in the context of many international prosecutions.","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2006-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67902083","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
A common criticism of arbitration is that its upfront costs (arbitrators' fees and administrative costs) may preclude consumers and employees from asserting their claims. Some commentators have argued further that arbitration costs undercut the benefits to such claimants of contingent fee contracts, which permit the claimants to defer payment of attorneys' fees and litigation expenses until they prevail in the case (and if they do not prevail, avoid such costs altogether). This paper argues that this criticism has it exactly backwards. Rather than arbitration costs interfering with the workings of contingent fee contracts, the contingent fee mechanism provides a means for overcoming liquidity and risk aversion barriers to arbitration. Arbitration costs are just another form of litigation expense, which attorneys should be willing to advance on behalf of clients with viable claims. As a result, even accepting the premises of the cost-based criticism, it does not follow that arbitration costs necessarily preclude individuals from bringing their claims in arbitration. Even if individual claimants cannot afford the forum costs of arbitration, at least some of those individuals - those with viable claims given the total costs of the dispute resolution process - should nonetheless be able to bring their claims. For this reason, much of the legal analysis of arbitration cost challenges is misdirected, focusing too much on the personal finances of the individual claimant and too little on the incentives for attorneys to take the case (such as the value of the claim and possible recovery under fee-shifting statutes). In the vast majority of federal court cases adjudicating cost-based challenges to arbitration agreements, the claimant is represented by counsel, and in most has asserted a claim that, if successful, would permit the recovery of attorney's fees. This evidence suggests that in most reported cases, even those in which courts invalidated the arbitration agreement on cost grounds, arbitration costs were not a barrier to asserting the claim in arbitration.
{"title":"Arbitration Costs and Contingent Fee Contracts","authors":"C. R. Drahozal","doi":"10.2139/SSRN.776786","DOIUrl":"https://doi.org/10.2139/SSRN.776786","url":null,"abstract":"A common criticism of arbitration is that its upfront costs (arbitrators' fees and administrative costs) may preclude consumers and employees from asserting their claims. Some commentators have argued further that arbitration costs undercut the benefits to such claimants of contingent fee contracts, which permit the claimants to defer payment of attorneys' fees and litigation expenses until they prevail in the case (and if they do not prevail, avoid such costs altogether). This paper argues that this criticism has it exactly backwards. Rather than arbitration costs interfering with the workings of contingent fee contracts, the contingent fee mechanism provides a means for overcoming liquidity and risk aversion barriers to arbitration. Arbitration costs are just another form of litigation expense, which attorneys should be willing to advance on behalf of clients with viable claims. As a result, even accepting the premises of the cost-based criticism, it does not follow that arbitration costs necessarily preclude individuals from bringing their claims in arbitration. Even if individual claimants cannot afford the forum costs of arbitration, at least some of those individuals - those with viable claims given the total costs of the dispute resolution process - should nonetheless be able to bring their claims. For this reason, much of the legal analysis of arbitration cost challenges is misdirected, focusing too much on the personal finances of the individual claimant and too little on the incentives for attorneys to take the case (such as the value of the claim and possible recovery under fee-shifting statutes). In the vast majority of federal court cases adjudicating cost-based challenges to arbitration agreements, the claimant is represented by counsel, and in most has asserted a claim that, if successful, would permit the recovery of attorney's fees. This evidence suggests that in most reported cases, even those in which courts invalidated the arbitration agreement on cost grounds, arbitration costs were not a barrier to asserting the claim in arbitration.","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2005-08-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67826150","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article examines the theoretical issues and surveys the evidence on the desirability of securities class actions. Class actions offer the promise of energizing private enforcement of the securities laws, including in particular antifraud liability. For shareholders of large, publicly-held corporations, the individual benefits of pursuing a fraud action are often outweighed by the considerable costs of litigation. Without a class action, many potential fraud lawsuits may simply not get litigated. Nonetheless, the article explores three related problems with class actions: (a) the problem of frivolous suits (and the need to allow meritorious suits); (b) the lack of incentives on the part of plaintiffs' attorneys to focus on smaller companies; and (c) the agency problem between plaintiffs' attorneys and the plaintiff class. The article then assesses the existing evidence from the United States (in particular on the impact of the Private Securities Litigation Reform Act of 1995) in addressing these problems and proposes future avenues for research. Understanding the impact of class actions is important not only for the U.S. but also for countries considering the adoption of a U.S.-style securities class action system. As an example, the article discusses whether securities class actions would be beneficial in South Korea, a country with a smaller capital market and fewer large companies compared with the United States.
{"title":"The Evidence on Securities Class Actions","authors":"Stephen Choi","doi":"10.2139/SSRN.528145","DOIUrl":"https://doi.org/10.2139/SSRN.528145","url":null,"abstract":"This article examines the theoretical issues and surveys the evidence on the desirability of securities class actions. Class actions offer the promise of energizing private enforcement of the securities laws, including in particular antifraud liability. For shareholders of large, publicly-held corporations, the individual benefits of pursuing a fraud action are often outweighed by the considerable costs of litigation. Without a class action, many potential fraud lawsuits may simply not get litigated. Nonetheless, the article explores three related problems with class actions: (a) the problem of frivolous suits (and the need to allow meritorious suits); (b) the lack of incentives on the part of plaintiffs' attorneys to focus on smaller companies; and (c) the agency problem between plaintiffs' attorneys and the plaintiff class. The article then assesses the existing evidence from the United States (in particular on the impact of the Private Securities Litigation Reform Act of 1995) in addressing these problems and proposes future avenues for research. Understanding the impact of class actions is important not only for the U.S. but also for countries considering the adoption of a U.S.-style securities class action system. As an example, the article discusses whether securities class actions would be beneficial in South Korea, a country with a smaller capital market and fewer large companies compared with the United States.","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2004-04-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.528145","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67758411","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article analyzes a data set of reported decisions from 1992-2003 in which the number of opt-outs and/or objectors to class action settlements was quantified. The numbers of opt-outs and objections were uniformly low and in some cases nearly trivial. On average, less than 1% of class members opt-out and about 1% of class members object to class-wide settlements. Civil rights and employment discrimination class actions have relatively higher objection rates, but even these are less than 5% of the class. Securities, antitrust, and consumer class actions have the lowest rates of dissent. Dissent rises with the average recovery per class member and falls as a percentage of the class as the size of the class increases. Dissent is not correlated with the attorneys fee as a percent of the class recovery. The rate of objection to a settlement is negatively correlated with the chance that the settlement will be approved, but the rate of opt-outs has no correlation with settlement approval. Levels of dissent exhibit a noticeable decline over the period of the study. This study has a variety of implications for the law of class actions.
{"title":"The Role of Opt-Outs and Objectors in Class Action Litigation: Theoretical and Empirical Issues","authors":"T. Eisenberg, G. Miller","doi":"10.2139/SSRN.528146","DOIUrl":"https://doi.org/10.2139/SSRN.528146","url":null,"abstract":"This article analyzes a data set of reported decisions from 1992-2003 in which the number of opt-outs and/or objectors to class action settlements was quantified. The numbers of opt-outs and objections were uniformly low and in some cases nearly trivial. On average, less than 1% of class members opt-out and about 1% of class members object to class-wide settlements. Civil rights and employment discrimination class actions have relatively higher objection rates, but even these are less than 5% of the class. Securities, antitrust, and consumer class actions have the lowest rates of dissent. Dissent rises with the average recovery per class member and falls as a percentage of the class as the size of the class increases. Dissent is not correlated with the attorneys fee as a percent of the class recovery. The rate of objection to a settlement is negatively correlated with the chance that the settlement will be approved, but the rate of opt-outs has no correlation with settlement approval. Levels of dissent exhibit a noticeable decline over the period of the study. This study has a variety of implications for the law of class actions.","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2004-03-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67758032","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The cloudy crystal ball: genetics, child abuse, and the perils of predicting behavior.","authors":"Robert D Stone","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":null,"pages":null},"PeriodicalIF":1.9,"publicationDate":"2003-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24835065","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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