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60 UCLA L. Rev. 1494 (2012-2013)
Symmetry and Class Action Litigation

handle is hein.journals/uclalr60 and id is 1536 raw text is: 7 Alexandra D. Lahav
T7   ACT
<1 In ordinary litigation, parties often have different resources to devote to their lawsuit.
T1his is a problem because the adversarial system is predicated on two (or more) parties,
equal and opposite one another, making their best arguments to a neutral judge. T1he
class action is a procedural device that aims to solve this problem by equalizing resources
between individual plaintiffs and organizational defendants. It does this by allowing
plaintiffs to pool their claims. Current developments in class action doctrine, however,
reinforce in the courtroom the asymmetry that exists between individual plaintiffs and
organizational defendants outside the court. T1his Article explores these trends and the
questions they raise. Why is it that critics of class actions (and some judges) argue that
class actions ought not to be certified for litigation purposes because they blackmail
defendants into settling suits, but they approve of the practice of certifying class actions
for settlement when defendants seek to settle clearly meritless claims? Why is the
blackmail argument so resilient in the class action context, and what insight does this
lend to the context of binary litigation where litigants are more likely to have unequal
resources to devote to litigation and, as a result, more likely to enter into settlements
that do not reflect the true value of their claim? Should asymmetry of resources in
litigation be considered a problem for our court system, or is it right for courts to take
litigants as they find them, even if litigants have vastly unequal resources to devote to
pursuing their lawsuits?
AUTHO
Alexandra D. Lahav is Professor of Law at the University of Connecticut. T1hanks to
Jennifer Mnookin and Joanna Schwartz for inviting me to celebrate Steven Yeazell's
work, to the editors of the UCLA Law Review, to Ron Allen for comments on a previous
draft, and to Ruth Mason, Sachin Pandya, and Peter Siegelman for insights that improved
my arguments.

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