Entrepreneurial Litigation: Its Rise, Fall, and Future
Uniquely in the United States, lawyers litigate large cases on behalf of many claimants who could not afford to sue individually. In these class actions, attorneys act typically as risk-taking entrepreneurs, effectively hiring the client rather than acting as the client’s agent. Lawyer-financed, lawyer-controlled, and lawyer-settled, such entrepreneurial litigation invites lawyers to sometimes act more in their own interest than in the interest of their clients. And because class litigation aggregates many claims, defendants object that its massive scale amounts to legalized extortion. Yet, without such devices as the class action and contingent fees, many meritorious claims would never be asserted.
John Coffee examines the dilemmas surrounding entrepreneurial litigation in a variety of specific contexts, including derivative actions, securities class actions, merger litigation, and mass tort litigation. His concise history traces how practices developed since the early days of the Republic, exploded at the end of the twentieth century, and then waned as Supreme Court decisions and legislation sharply curtailed the reach of entrepreneurial litigation. In an evenhanded account, Coffee assesses both the strengths and weaknesses of entrepreneurial litigation and proposes a number of reforms to achieve a fairer balance. His goal is to save the class action, not discard it, and to make private enforcement of law more democratically accountable. Taking a global perspective, he also considers the feasibility of exporting a modified form of entrepreneurial litigation to other countries that are today seeking a mechanism for aggregate representation.
Civil Law | Civil Procedure | Law | Litigation | Torts
Harvard University Press
“What has been largely missing from this debate over the merits and demerits of class action litigation is a judicious appraisal of its strengths and weaknesses, unaffected by ideological biases … Coffee has long been regarded as perhaps the preeminent expert on U.S. securities law, but his book is not limited to securities class actions. Rather, it covers the full spectrum of class actions, including mass tort class actions, employment discrimination class actions, antitrust class actions, consumer class actions, merger and acquisition class actions, and much more. Not only is the book more comprehensive than prior studies of class actions, it also probes more deeply, placing today’s class actions firmly within the setting of the modern trend toward turning the practice of law ever more into a business. Perhaps most impressively, Coffee’s book offers specific prescriptions…for reducing the weaknesses of modern class action litigation while enhancing its strengths.”
—Jed S. Rakoff, The New York Review of Books
“This complicated subject matter will be appreciated by those who desire an in-depth review of this narrow topic and are interested in a critical perspective and call for reform that the author touts as absent in the literature.”
—C. Fruin, Choice
“Jack Coffee is the leading scholar on the array of issues that surround representative shareholder litigation. This book builds upon his decades of scholarship and engagement. Central to the rewards awaiting the reader is the rich understanding of how litigants’ incentives have changed over time so that the once lofty image that cast the representative suit as being the ‘private attorney general’ now stands substantially qualified. His insightful and balanced analysis of the challenges that surround such suits provides a solid foundation on which reform of the representative suit can occur. The book concludes with an international perspective and also offers an agenda for reform to preserve and strengthen, but also to constrain the representative suit.”
—James D. Cox, Duke University School of Law
“Professor Coffee’s book is comprehensive, well-written, original, and fun to read. He covers enormous ground, and the book should attract a wide and diverse audience interested in complex litigation, including securities and mass torts.”
—Linda J. Silberman, New York University School of Law
Coffee, John C. Jr., "Entrepreneurial Litigation: Its Rise, Fall, and Future" (2015). Faculty Books. 5.