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Curtailing the impact of class actions on antitrust policy

Jonathan Jacobson, Joyce Choi, 66 NYU Annual Survey of American Law, Vol. 66:549 (2011).
NB: This article has been nominated by the Academic Steering Committee for the academic category, general antitrust section of the 2012 Antitrust Writing Awards. Click here for all winning-awards articles

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Readers vote is closed since March 1st, 2012. Readers’ vote has nominated 2 articles for each of the Awards. This short list has been communicated to the Board, with the articles nominated by the Steering Committees. The Board will decide on the award-winning articles on March 27, at the Awards ceremony to take place in DC. See vote results online here.

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Thou shalt not grant or deny class certification based on an analysis of the probability of success on the merits of the plaintiffs’ claim. That fundamental principle of procedural jurisprudence was announced over 25 years ago in Eisen v. Carlisle & Jacquelin and remains bedrock law today. But the principle has had increasingly negative consequences, has helped lead to an undue narrowing of substantive antitrust rules, and is no longer supported by the reasons originally given for it. This Article, therefore, suggests that Eisen has outlived its usefulness and should be overruled.

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