I found particularly interesting a recent post on the Carlton Fields’ Class Action Blog that discusses a book entitled Wholesale Justice: Constitutional Democracy and the Problem of the Class Action Lawsuit by Professor Martin Redish of Northwestern University Law School.  I have not yet read the book, but based on the blog post and a book review about the book, Professor Redish’s main claim is that class actions violate principles of separation of powers because Congress’s delegation of power to the Supreme Court under the Rules Enabling Act to create procedural rules does not include the power to alter substantive rights by transforming small individual disputes into massive class actions.  The second central point of the book is that opt-out class actions under which individuals are made participants in litigation without their affirmative consent violates constitutional principles of freedom of association.  The third claim is that settlement class actions violate Article III’s case or controversy requirement.  The Carlton Fields blog post also discusses an article by Mark Hermann, Vice President and Chief Counsel of Litigation at Aon, which argues that practicing lawyers should be more familiar with scholarship in their field, and that someone should attempt to make Professor Redish’s arguments in an appropriate case. 

I think the reason why no one apparently has made Professor Redish’s arguments in court is not because no one in the practicing or in-house counsel bar is aware of them, but rather because such a fundamental transformation of class action law in one case is quite unlikely.   Lurking in these bold claims, however, are some closely-related constitutional arguments that, at least occasionally, are made by defendants and likely will continue to gain traction.  In the context of a particular case, on its facts, the certification of a class may be a violation of due process or violate the Rules Enabling Act because it is altering substantive rights or treating class members who do not affirmatively opt out in a fundamentally unfair way.  Last year’s opinion in Wal-Mart v. Dukes found a violation of the Rules Enabling Act, and potentially due process as well,  where the proposed trial plan in that case would have eviscerated Wal-Mart’s right to prove its defenses on an individual basis.  

As to whether practicing lawyers are adequately versed in scholarship in their field, I think the obligations there go both ways to increase interaction.  The advent and growth of blogs by both practicing lawyers and academics has led to far more interaction between academia and the practicing bar.  I think it keeps academics more closely in touch with what is happening in day-to-day practice and how their theories might play out in the “real world.”  This also allows practicing lawyers to keep abreast of arguments being made by academics without reading through very lengthy articles.  Since starting this blog I have had regular interaction with law professors on issues of mutual interest, and have enjoyed that.  The growing change from very lengthy law review articles (like the 100+ page ones that I had to cite check when I was on the Columbia Law Review) to more accessible, shorter pieces also makes law professors’ scholarship more accessible and useful to busy practicing lawyers and judges.  We all have to recognize the importance of brevity.  Busy judges and lawyers, as well as in-house lawyers and corporate executives, do not have the time to sift through lengthy articles.  The key points almost always can be made in something much shorter.  Whenever I serve as a moot court judge it reminds me that the time I spend reading the briefs and some of the key cases is probably equivalent if not more than the time a real judge is likely to spend in preparing for the argument.  Brevity and focus are essential in everything we do.

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Photo of Wystan Ackerman Wystan Ackerman

I am a partner at the law firm of Robinson+Cole in Hartford, Connecticut, USA.  My contact information is on the contact page of my blog.  I really enjoy receiving questions, comments, suggestions and even criticism from readers.  So please e-mail me if you…

I am a partner at the law firm of Robinson+Cole in Hartford, Connecticut, USA.  My contact information is on the contact page of my blog.  I really enjoy receiving questions, comments, suggestions and even criticism from readers.  So please e-mail me if you have something to say.  For those looking for my detailed law firm bio, click here.  If you want a more light-hearted and hopefully more interesting summary, read on:

People often ask about my unusual first name, Wystan.  It’s pronounced WISS-ten.  It’s not Winston.  There is no “n” in the middle.  It comes from my father’s favorite poet, W.H. (Wystan Hugh) Auden.  I’ve grown to like the fact that because my name is unusual people tend to remember it better, even if they don’t pronounce it right (and there is no need for anyone to use my last name because I’m always the only Wystan).

I grew up in Deep River, Connecticut, a small town on the west side of the Connecticut River in the south central part of the state.  I’ve always had strong interests in history, politics and baseball.  My heroes growing up were Abraham Lincoln and Wade Boggs (at that time the third baseman for the Boston Red Sox).  I think it was my early fascination with Lincoln that drove me to practice law.  I went to high school at The Williams School in New London, Connecticut, where I edited the school newspaper, played baseball, and was primarily responsible for the installation of a flag pole near the school entrance (it seemed like every other school had one but until my class raised the money and bought one at my urging, Williams had no flag pole).  As a high school senior, my interest in history and politics led me to score high enough on a test of those subjects to be chosen as one of Connecticut’s two delegates to the U.S. Senate Youth Program, which further solidified my interest in law and government.  One of my mentors at Williams was of the view that there were far too many lawyers and I should find something more useful to do, but if I really had to be a lawyer there was always room for one more.  I eventually decided to be that “one more.”  I went on to Bowdoin College, where I wrote for the Bowdoin Orient and majored in government, but took a lot of math classes because I found college math interesting and challenging.  I then went to Columbia Law School, where I was lucky enough to be selected as one of the minions who spent their time fastidiously cite-checking and Blue booking hundred-plus-page articles in the Columbia Law Review.  I also interned in the chambers of then-Judge Sonia Sotomayor when she was a relatively new judge on the Second Circuit, my only connection to someone who now has one-ninth of the last word on what constitutes the law of our land.  I graduated from Columbia in 2001, then worked at Skadden Arps in Boston before returning to Connecticut and joining Robinson+Cole, one of the largest Connecticut-based law firms.  At the end of 2008, I was elected a partner at Robinson+Cole.

I’ve worked on class actions since the start of my career at Skadden.  Being in the insurance capital of Hartford, we have a national insurance litigation practice and I was fortunate to have the opportunity to work on some prominent class actions arising from the 2004 hurricanes in Florida and later Hurricane Katrina, including cases involving the applicability of the flood exclusion, statutes known as valued policy laws, and various other issues.  My interest and experience in class actions gradually led me to focus on that area.

In Connecticut courts I’ve defended various kinds of class actions that go beyond insurance, including cases involving products liability, securities, financial services and consumer contracts.

My insurance class action practice usually takes me outside of Connecticut.  I’ve had the pleasure of working on cases in various federal and state courts and collaborating with great lawyers across the country.  While class actions are an increasingly large part of my practice, I don’t do exclusively class action work.  The rest of my practice involves litigating insurance coverage cases, often at the appellate level.  That also frequently takes me outside of Connecticut.  A highlight of my career thus far was working on Standard Fire Ins. Co. v. Knowles, the U.S. Supreme Court’s first Class Action Fairness Act case.  I was Counsel of Record for Standard Fire on the cert petition, and had the pleasure of working with Ted Boutrous on the merits briefing and oral argument.

I started this blog because writing is one of my favorite things to do and I enjoy following developments in class action law, writing about them and engaging in discussion with others who have an in interest in this area.  It’s a welcome break from day-to-day practice, keeps me current, broadens my network and results in some new business.

When I’m not at my desk or flying around the country trying to save insurance companies from the plaintiffs’ bar, or attending a conference on class actions or insurance litigation (for more on those, see the Seminars/Programs page of this blog), I often can be found playing or reading with my young daughter, helping my wife with her real estate and mortgage businesses, reading a book about history or politics, or watching the Boston Red Sox (I managed to find bleacher seats for Game 2 of the 2004 World Series when Curt Schilling pitched with the bloody sock).  When the weather is good I also love to take the ferry to Block Island, Rhode Island and ride a bike or walk the trails there. If you go, I highly recommend the Clay Head Trail.