Center on Corporate Governance
Center for Contract and Economic Organization
If it was the goal of Silver and Baker to write a provocative article, they have succeeded. They ask probing questions; they are appropriately scornful of superficial answers; and they seek to relate their view of legal ethics to what they perceive to be the prevailing standards in the legal marketplace. All this is good. They also usefully focus on an underappreciated dichotomy: the ethical rules governing aggregated settlements in consensual litigation versus the rules applicable in aggregated nonconsensual litigation (i.e., class actions). Essentially, they argue that the rules in both contexts should be the same or very similar, the nonconsensual context of class actions does not distinguish it sharply from consensual litigation, and the role of consent has been overstated in both contexts.
John C. Coffee Jr.,
Conflicts, Consent, and Allocation after Amchem Products-- Or, Why Attorneys Still Need Consent to Give Away their Clients' Money,
Va. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/524