Learning from a Legal Giant: My Week with Professor Arthur Miller
By: Connor Organ, Third-year Law Student
Few law students have the opportunity to learn from a professor who wrote the leading casebooks and treatises on the course’s subject. Even fewer students are fortunate enough to learn from a professor who argued in nearly every landmark case related to the case over the last several decades. And even fewer law students have the opportunity to learn from a professor who can tell stories about sharing jokes and arguments with almost every Supreme Court justice in the last 25 years. But the Chesley Lecture at the College of Law granted less than a dozen students with an intimate learning experience from that professor, Arthur R. Miller.
Professor Miller, University Professor at New York University Law School, is the nation’s leading scholar in the field of civil procedure. He is co-author, with the late Chares Wright, of Federal Practice and Procedure. Miller and Wright are among the most-often cited and well-regarded law treatise writers in the field.
Over a five-day short course on aggregate litigation, Professor Miller discussed class actions and multidistrict litigation. More specifically, the course covered class certification, class types, class counsel, forum selection and rival proceedings, class settlements, and alternative dispute resolution related to aggregate litigation (only a fraction of which is summarized below).
He tied the course together with the theme of diminishing access to courts. As Professor Miller explained, “only a fool or an idiot sues for $30.” At the same time, however, how do you make a group of plaintiffs who individually lack feasible lawsuits whole? For one, plaintiffs might never be made “whole” since, as he explained, “the quest for the perfect is the enemy of the good.” Nonetheless, the law must support aggregate litigation that provides finality for the liable defendant and an adequate remedy for the wronged plaintiff. In Professor Miller’s view, Rule 23 and its case law no longer do that, which effectively denies wronged parties their day in court.
To illustrate his point, Professor Miller explained that although the Federal Rule of Civil Procedure 23(a) lists four prerequisites, there are two additional, unmentioned requirements that a class must satisfy to become certified: the class must be definable; and the representative has to be a member of the class. Those seemed pretty straightforward.
But then Miller pointed out several less obvious, yet critical prerequisites within Rule 23, which he helped write. He showed that while Rule 23 does not classify any other sections as prerequisites for class certification, in practice Rule 23(b) (which categorizes types of class actions) becomes a significantly difficult prerequisite. The difficulty derives from strategic implications that attorneys must consider when packaging their clients into one or more of Rule 23(b)’s three types. These implications involve preclusion, damages, opting out, and choice of law, among others. In effect, class type is critical because it sets parameters for class certification, the driving force of all class action litigation. And while this oversimplified summary is just one facet of Professor Miller’s course, it built the foundation for additional discussion on other important topics within the areas of class actions and MDLs.
Beyond explaining how policies shaped the laws of class actions and MDLs, how the law has developed, and how attorneys and courts apply the current law, Professor Miller interwove fascinating personal experience to draw the class’s attention and encourage unique perspectives. In doing so, he transformed the course from a difficult analysis of complex law to a consumable storyline from which practical application logically followed. I am grateful to Professor Miller for his time and insight into his area of expertise. As a down-to-earth intellectual, he entertained us and at the same time taught several practical, valuable areas of the law in just five days. My only complaint is that the course wasn’t longer.