Litigation and Institutional Design
This seminar will focus on issues of institutional design as they relate to complex litigation in the contemporary American legal system. Topics addressed will include explanations for the general move away from regulation and toward litigation in recent decades, the legal and policy implications of that trend, and contemporary efforts to retrench or remake the system. We will examine these topics from a number of substantive and procedural angles using case law, readings, and case studies. We will explore such disparate substantive areas of law as employment discrimination, securities regulation, qui tam actions, and mass torts. We will also discuss trans-substantive topics such as the class action device, private enforcement of public law (through regimes that deputize "private attorneys general" as enforcers), and federal regulatory pre-emption. Though the seminar will integrate knowledge from a number of fields of law and from other disciplines, emphasis will be given to the functional analysis of practical problems of institutional design. (Note: This course was previously titled "Reconstructing the Litigation State.") Grades will be based on class participation and either (1) several short reflection papers or (2) an independent research paper with consent of the instructor. After the term begins, students accepted into the course can transfer from section (01) into section (02), which meets the R requirement,with consent of the instructor. Students taking the course for R credit can take the course for either 2 or 3 units, depending on the paper length. Writing (W) credit is for 3Ls only. Elements used in grading: Class participation, attendance, reflection papers or research paper.