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Population Research and Policy Review 18: 491–505, 1999. © 1999 Kluwer Academic Publishers. Printed in the Netherlands.

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Unveiling the demographic ‘action’ in class-action lawsuits: Two instructional cases PETER A. MORRISON RAND, Santa Monica, California, USA

Abstract. Population turnover, cohort survival, and intercohort transmission of effects are concepts widely applicable beyond the customary domains of demographic analysis. One such application involves a cohort of victims referenced in time and place by a common harm for which legal redress is sought through a class-action lawsuit. Two instructional case studies illustrate applications of demographic reasoning and data to certain generic questions such litigation may pose: How many claimants will remain by some future date? How prevalent will they then be in the population? How feasible will it be to redress the harm years later? These cases illustrate the use of familiar demographic concepts and simple demographic reasoning to draw legally relevant conclusions from available data. Specific instructional applications include: accounting for demographic factors that deplete the original class over time and dilute its surviving members among residents at the referenced place; integrating the use of administrative record, census, and vital statistics data; and devising approximate estimates of turnover within local populations. Training is broadly suited to assignments aimed at applying common-sense demographic reasoning to devise nonstandard solutions to measurement problems. Keywords: Applied demography, Class action, Law, Teaching

Introduction Population turnover, cohort survival, and intercohort transmission of effects are familiar demographic concepts widely applicable beyond the customary domains of demographic analysis. This article offers an excursion, for instructional purposes, into one such application: the class-action lawsuit. Substantively it introduces the reader to the legal context of such lawsuits and certain derivative questions which can be addressed demographically. Technically it illustrates the use of common-sense demographic reasoning to answer those questions and draw legally relevant conclusions. Class-action lawsuits typically involve large groups of victims with injuries linked to some cause. They bring together small claims impractical to litigate individually. By aggregating small claims, class actions lower litigation costs and enhance legal resources brought to bear. A claim is filed by or against parties acting as representatives for similarly situated persons.

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The judgment or settlement in a class action decides the claims and factual issues not only of the representative who brings the suit but also of those persons (class members) whom the representative is entitled to represent (see Tidmarsh 1998: 19). As Hensler et al. (1999) elaborate: Typically, representative class actions for money damages arise when someone recognizes (or believes) that some violation of statutory or case law has (or may have) occurred, causing economic harm to a large number of individuals. This person could be an individual who has suffered the harm, e.g., a stockholder who finds herself with a suddenly less valuable portfolio, or a consumer who believes that he has been overcharged for a transaction or service . . . . (p. 73) Over the years, numerous products have sparked lawsuits with large claimant populations: for example, tobacco, the defoliant Agent Orange, and silicone breast implants. (For detailed descriptions and empirical studies of these and other contemporary class action lawsuits, see Hensler et al. 1999; Willging et al. 1996; Tidmarsh 1998.) The demographic connection here is the resemblance a plaintiff class bears to a cohort, referenced in time and place by a common harm. For example, the class may be a cohort of consumers injured by a particular store which illegally short-changed them for a period of time; or persons injured by forced attendance at segregated schools. Eventually, most class actions result in a negotiated settlement designed to compensate victimized individuals who are still reachable and/or deter future violations. Identifying and locating claimants long after an injury invariably complicates matters procedurally and legally, as cohorts are not static. Over time, a plaintiff class will disperse spatially, die off, and be diluted by newcomers joining the population at the referenced place. It is here that demographic analysis is applicable to several generic questions which bear on the settlement of class action litigation: 1. Size of the remnant plaintiff class. By some future date, what proportion of the original plaintiff class would still be present locally to make individual claims or to benefit from any future relief? 2. Share of the remnant class in a population. How large would the population of surviving claimants then be as a proportion of an area’s entire resident population, allowing for dilution through in-migration and natural increase? 3. Feasibility of redressing the injury. Years later, how many class members might the proposed relief reach?

UNVEILING THE DEMOGRAPHIC ‘ACTION’ IN CLASS-ACTION LAWSUITS

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The paper draws on two case studies which address widely different concerns: (1) price fixing which unlawfully overcharged consumers, and (2) the lingering intergenerational effects of segregated schools. The former involves an alleged class composed of consumers who were charged an unlawfully inflated price for orange juice over several years by a defendant foodstore in Los Angeles County. A proposed settlement years later would have required the defendant to rectify the harm done by offering all consumers the same product at a below-market price in the same area. Two questions arose here: (1) How large a remnant of the original class would still be present to benefit under the proposed settlement? (2) How many uninjured newcomers to the area would stand to reap a windfall? The latter case involves black students who now attend public schools in a city where earlier generations of blacks had to attend segregated schools. Plaintiffs asserted that the earlier parental generation imparts to these contemporary students an educational deprivation caused by the city’s oncesegregated schools the parents themselves attended, thereby transmitting injury to a subsequent generation. A contemplated settlement envisioned rectifying this subsequent injury through an infusion of resources into the city’s school system. The questions posed here were: (1) How many first-generation victims still live in the city? (2) How many of the students now attending the city’s public schools are their offspring, hence second-generation victims? Each case challenges one to account for the demographic ‘action’ – the factors that inexorably deplete the size of an original class over time and dilute its surviving members among residents of the referenced place. Students can gain experience integrating administrative record, census, and vital statistics data; and devising approximate estimates of turnover within local populations. Training is broadly suited to assignments aimed at applying common-sense demographic reasoning to devise nonstandard solutions to measurement problems.

Legal context Class actions are a notable feature of the contemporary civil litigation landscape. The examples detailed ahead are representative of two common types: consumer cases, which account for 25% of reported judicial decisions; and civil rights cases, which account for another 14% (Hensler et al. 1999: Figure 2.1). Traditional representative damage class actions serve important social and regulatory purposes (see Hensler et al. 1999; Newberg & Conte 1992; Saks 1992; Weinstein 1995; Wolfman & Morrison 1996). For example, they enable traditionally less powerful groups in society to combine forces to

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pursue common goals and oppose traditionally more powerful groups such as government agencies, corporations, and other entrenched interests. Class actions not only compensate victimized members of groups but also deter violations of the law, especially when small individual claims are involved. In effect, class actions are the primary vehicles in modern jurisprudence for the effective enforcement of the antitrust, securities, civil rights, and consumer laws. Rule 23 of the Federal Rules of Civil Procedure mandates four prerequisites to a class action: (1) parties so numerous that joining them is impracticable, (2) common questions of law and fact, (3) typical claims and defenses by the representative parties, and (4) adequacy of representation. Implicitly these legal requirements introduce demographic concepts, notably in the following aspects: • Class membership: The class must be defined clearly and objectively, since that definition determines who will be bound by the judgment or entitled to notice of its pendency. Typically, it is necessary to estimate the numerical size and geographic scope of the class and the potential difficulty in locating class members (i.e., ascertainability). • Class period: In some instances, the class definition includes a time period, e.g., all persons who made a certain kind of purchase from the defendant between two dates; or all descendants who may inherit the adverse effects of a prior cohort’s exposure to, say, toxic radiation or racially segregated schools. Obviously, demographic change impinges on class membership and ascertainability the further that dates and times are pushed into the past. • Damage distribution: When individual claims are small, individual damage distribution may be so infeasible that other alternatives are called for. One alternative is fluid recovery distribution, i.e., recovery to a class of present or future class members who possess the underlying characteristics of the original class members actually victimized. The illustration of fluid recovery explored ahead involved compensating class members through the market by seeking court-ordered lowering of the price of the product whose price had been fixed.

Case 1: Consumers unlawfully overcharged Background. A legally certified class of consumers was unlawfully overcharged for orange juice over a five-year period (1989–1993) in stores patronized by residents of Los Angeles County. Legal negotiations extended over several years, and in 1996 a settlement was proposed to compensate those consumers who had been wronged. The proposal called for a mandatory


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reduction in the future price of orange juice at the same stores over a fiveyear period commencing January 1999. Thus all consumers patronizing those same stores which overcharged consumers a decade earlier would benefit from this below-market price. Certain legally salient issues had to be resolved prior to settlement, and a demographic perspective furthered that process. The size and proportion of the original class, of course, fades with each passing year as members move away or die, and as surviving members who stay put are diluted by newcomers to Los Angeles County and their subsequent offspring. Demographic change poses two questions: (1) By 1999, how many of the consumers originally overcharged would still reside in the same area to benefit as patrons of those same stores? To arrive at an answer, we must account for the demographic factors depleting the size of the class still residing in Los Angeles County through 1998. (2) How large would this remnant class then be as a proportion of all Los Angeles County residents? Here we must account for the demographic factors diluting this remnant of the original class. Estimating depletion through out-migration. Depletion of the class occurs as households leave Los Angeles County. Driver license change-of-address data (available for many states) provide a basis for approximating the rate of household out-migration. Such data have recognized limitations documented in various applications in California (see Hoag 1984; California Department of Finance 1991; Johnson & Lovelady 1995). Coverage is confined to licensed drivers only, not the total population who may have moved; notably excluded are immigrants and emigrants crossing national boundaries. Timeliness is imperfect, since changes of address may not get reported in the same year as the moves they reflect. Finally, underreporting occurs wherever states fail to return all surrendered licenses, thereby affecting all grand totals of California drivers leaving the state. Despite their limitations, these data have proven their worth in applications to California migration (Johnson & Lovelady, 1995). For the purposes at hand, such data offer an objective basis for estimating cumulative depletion over a period of years. (1) Interstate. California Department of Finance (DOF) statistics record slightly over 425,000 licensed drivers relocating from Los Angeles County to another state during a five year period corresponding to January 1989 through December 1993. DOF estimates 1.86 licensed drivers per household around 1990, which implies about 229,000 class households had left California by the end of 1993. Projecting these same data five years further implies that 229,000 additional class households will have left California by the end of 1998. Between January 1989 and December 1998, then, some 458,000 (or

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15.8%) of the roughly 3 million households initially in Los Angeles County will have left the State of California. (2) Intrastate. An additional 1,082,202 licensed drivers relocated from Los Angeles County to another California county between 1989 and 1993, implying the departure of a further 582,000 class households from Los Angeles County by the end of 1993. Projecting these same data five years beyond 1993 implies that 582,000 additional class households will have left Los Angeles by the end of 1998. Between 1989 and 1998, then, 1,164,000 more (or 38.9%) of the 3 million households initially in Los Angeles County will be ex-residents, living elsewhere in California. This 38.9% plus the 15.8% living outside the state indicates that 54.7% of the original class as of January 1989 would be gone from Los Angeles by December 1998. That would leave only 45.3% of those consumers who were overcharged in 1989 still in the vicinity of where the proposed relief is to be offered. Estimating depletion through mortality. Since class members inevitably die off, this 45.3% remnant will be subject to further loss through mortality. County data (California Department of Finance 1997b) show approximately 60,000 deaths annually to county residents, which represents a crude rate of 6.8 per thousand population. Assuming (conservatively) that members of the class in question are younger, on average, than the entire population, the corresponding rate might be only half as large for them. Under that assumption, mortality would deplete the class by approximately 0.34% annually. For the five-year period ending in 1993, therefore, a conservative estimate of cumulative depletion through mortality would be about 1.7%. By the end of 1998, cumulative depletion would be about twice that percentage, leaving 96.6% of the class still alive. Deflating the 45.3% remnant still in place in Los Angeles County by 3.4% leaves 43.8% of the original class as surviving residents of Los Angeles County by December 1998. In round numbers, then, demographic accounting indicates fewer than 45 of every 100 original class households would still be present locally by December 1998 to benefit from any compensatory measure. This figure represents only a hypothetical upper limit, though, since it ignores the additional effect of substantial intracounty residential mobility; typically, one household in five changes residence annually. Accordingly, many such households will have moved to another neighborhood and patronize other non-defendant stores. The 45% figure might well slip below 40%, given the defendant’s narrow (under 5%) market share within the county. However coarse the approximation here, it supports a salient conclusion pertaining to damage distribution. The feasibility of any locally based relief


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would diminish over time. In this instance, a price cut commencing 10 years later almost certainly would not reach most of those originally overcharged in 1989. Estimating dilution of the original class. As the class in question fades over time through out-migration and mortality, its share of the local population shrinks as newly arriving households (plus subsequent offspring they bear) dilute its remaining numbers. Having estimated that 43.8% of the class would survive in place to benefit from a price cut, a further question presents itself: By 1999, how large would this 43.8% remnant be as a share of the entire resident population enjoying the reduced price? That is, for every 100 original (1989) class members still present in Los Angeles County by 1999, how many other nonclass members there would stand to reap a windfall? Driver license change-of-address data can approximate the influx of domestic newcomers to Los Angeles County. According to these data, between 850,000 and one million licensed drivers moved into Los Angeles County from elsewhere in California or the USA during the five-year period corresponding to January 1989 through December 1993. (A precise number eludes us here because California’s annual change-of-address data are tabulated by fiscal year, not calendar year. The range here – 850,000 to one million – allows for the probable seasonality of moves.) Based on 1.86 licensed drivers per household in 1990, we can calculate that roughly 457,000 new households settled in Los Angeles County during this period through the end of 1993. Projecting these same data five years ahead to December 1998 implies that 457,000 additional households will have settled in Los Angeles County since the period of injury. Those 457,000 new households will have diluted the roughly 3 million original class members by over 15.2% (assuming hypothetically that all 3 million are still alive and in Los Angeles County at the end of 1998). As already established, though, depletion through 1998 will have reduced the original class to 43.8 of every 100 original members. Thus, the dilution (15.2% above) means that about 34 domestic newcomers to Los Angeles County will be present for every 100 surviving class members still there (i.e., 15.2% divided by 43.8%). These 457,000 households arriving in Los Angeles County since 1993 account for just domestic in-migrants. They do not include the substantial additional numbers of foreign immigrants (both legal and illegal) settling in Los Angeles County from abroad. Legal immigrants alone average approximately 94,000 per year, according to California Department of Finance estimates (California Department of Finance 1997a). This 94,000 represents 1.06% of Los Angeles County’s 8.86 million residents. Over the five-year period

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ending December 1998, then, legal immigration alone will further dilute the population by 5.3%. Therefore, another 12.1 foreign immigrants (i.e., 5.3% divided by 43.8%) will be present in Los Angeles County per 100 surviving class members in addition to the 34 domestic in-migrants per 100. This 12.1 per 100 ratio, of course, accounts only for dilution by legal immigrants joining the remnants of the original class; the true ratio is more than twice as high (i.e., over 24) when allowance is made for illegal immigrants, whose numbers apparently exceed legal immigrants settling in Los Angeles during this five-year period (based on California Department of Finance 1997a: 2). By conservative calculations, then, the overall extent of dilution through December 1998 would exceed 58% (i.e., 34 + 24). That is, for every 100 surviving class members present in Los Angeles County to claim compensation, at least another 58 non-class members also would be present to reap a potential windfall. This 58% figure, though, is a hypothetical lower limit. We must still make allowance for post-migration births to the newcomers who settle in Los Angeles County after 1993. County vital statistics show that births to the county’s residents for the five-year period ending December 1993 numbered at least 946,819. This number added 10.7% to the County’s population. Simply projecting this number ahead five years to December 1998 implies that roughly 946,819 additional births will further dilute the class since the period of injury. Altogether, the dilutive effect of births would be on the order of 21.4% of the population by 1998. A sizeable fraction (surely exceeding one-sixth1 ) of these births would be attributable to the post-1993 in-migrant households. Accordingly, dilution through subsequent reproduction by in-migrants would exceed 4% (i.e., 21.4% divided by 6). Overall dilution, therefore, would exceed 62% (i.e., 58% attributable to newcomers, calculated above, plus 4% attributable to their offspring). Accounting for the demographic ‘action’ in this class reveals two key points about the contemplated price cut starting in 1999. First, its benefits would reach less than 45% of those originally overcharged in 1989. Second, the price cut would bestow an unwarranted windfall on 62 nonvictims for every 100 victims it might benefit. Although these approximations lack the precision demographers ordinarily achieve, they afford the court a firm basis for judging the efficacy of a fluid recovery form of damage distribution.

Case 2: Lingering intergenerational effects of segregated schools Background. The St Louis Public School System (SLPSS) was not fully desegregated until 1981. Before then, black students attended segregated schools recognized as having been ‘separate and unequal’. By implication,


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contemporary black students attending SLPSS schools are individuals whose parents have imparted to them an educational deprivation attributable to the City’s once-segregated schools the parents themselves attended. At issue here is the transmission of disadvantage across generations – a form of ‘lingering effect’ that has figured in litigation over past racial discrimination generally. Such an instance arose in 1995. Both the numerical size of the original injured class (parents educated at SLPSS schools prior to 1981) and their proportion by 1995 among the black population of St Louis will have faded over time. SLPSS alumni will have moved away from the city, and their children (second-generation victims) will now attend school somewhere else. Newcomers to St Louis (plus their offspring) will have diluted both classes as a proportion of the contemporary adult and school-age population. Some first-generation victims surely remain as current residents in St Louis, and many of the students now attending SLPSS schools surely are their offspring, hence second-generation victims. The question from the court in 1995 was: How large (or small) are these numbers today? Let us accept the premise that educational deprivation in an earlier generation of pre-1981 SLPSS students (now parents) was transmitted to the current generation attending SLPSS. How do we estimate the numbers of derivative victims, and their prevalence in the population by 1995? Depletion of parent class through out-migration. First we must define the original injured class (blacks who grew up in St Louis when schools were segregated) and estimate the fraction who stayed there into adulthood as potential parents of contemporary SLPSS students. Following standard demographic reasoning: 1. In 1995, blacks aged 24 to 47 encompass the vast majority of potential parents of SLPSS students aged 6 to 17 in 1995. These limits are derived from federal data (National Center for Health Statistics 1995) which show that for the relevant era, most childbearing did not begin until age 18 (so most children 6 or older have parents age 24 or older) and did not extend beyond age 34 (so most children 17 or younger have parents age 51 or younger). 2. Persons aged 24–51 in 1995 constitute virtually everyone who could have attended school as recently as 1988 (when 24-year-olds were age 17) and as long ago as 1950 (when 51-year-olds were age 6). 3. The major desegregation of SLPSS began in 1981, so 1980 was the final year when anyone could have attended a segregated SLPSS school. Thus, persons aged 32–51 in 1995 constitute virtually everyone who could have attended a segregated school as recently as 1981 (when 32-

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Table 1. Potentially transmitting generation: nonwhite/black school-age population, St Louis

Year

Age group (years) Total under 18

School-age (6–17)

1950 1955 1960 1965 1970 1975 1980 1985 1990

46,167 66,987 87,807 96,794 105,780 88,708 71,636 66,731 61,826

32,588 47,285 61,981 68,325 74,668 62,618 50,567 47,104 43,642

Note: Intercensal population derived by interpolation. Source: Census of Population (various years).

year-olds were age 17) or as long ago as 1950 (when 51-year-olds were age 6). 4. The 30-year period between 1950 and 1980, then, defines the intergenerational ‘window’ during which virtually all parents of today’s SLPSS students themselves might have attended a segregated school for at least one year. (Parenthetically, many of these parents had not yet moved to St Louis, so part or all of their schooling could have taken place elsewhere.) 5. The subset of parents who did attend SLPSS during this period form the original injured class (the potential transmitting generation). A graphic representation of this window would show this generation in school between 1950 and 1980.2 Evaluating this 30-year intergenerational window reveals how many 6 to 17 year-olds could be offspring of the potential transmitting generation. We can derive these successive 6-to17-year-old populations between 1950 and 1980 from historical census data summarized in Table 1. Next, we ask: How many of these individuals still live in St Louis in 1995? Depletion through out-migration is calculated using data shown in Table 2. 6. Table 2 shows reported migration outflows of blacks from St Louis during the latter half of each decade from the 1960s through the 1980s. (Data are derived from US Bureau of the Census 1977 and corresponding decennial census data for subsequent periods.) Also shown are the interpolated mid-period populations that generated those outflows, the implied five-year depletion rates (i.e., the fraction of each mid-period population out-migrating during that period), and the corresponding


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Table 2. Derivation of historical persistence rates

Year

Black/non-white population

1960 Mid-1967 1970 Mid-1977 1980 Mid-1987 1990

216,022 244,649 254,191 221,430 210,509 193,933 188,408

5-year outmigration (mid-period)

Fraction depleted

Fraction remaining

29,216

0.119

0.881

44,189

0.200

0.800

42,858

0.221

0.779

Note: Intercensal population derived by interpolation. Source: Census of Population, various years.

fraction persisting at the end of the period. From 1965–1970, for example, 29,216 blacks migrated out of the city, depleting the resident black population by 11.9%, so that 88.1% of the original class remained (ignoring mortality). 7. Next, we apply these persistence rates to each segment of the potential transmitting generation (from Table 1). The calculations (illustrated in Table 3) track the cumulative depletion of each segment and the fraction remaining in St Louis in 1995 (as potential parents of children in SLPSS schools). For example, we estimate that 20.6% (6,718) of an initial 32,588 school-age persons in 1950 remain as adult residents of St Louis in 1995. 8. To approximate overall depletion, we merge all cohorts in Table 3, summing the numbers across the 1995 row (totaling 129,256) and dividing that number by the sum of initial cohorts (the top diagonal cells totaling 398,032). Merging cohorts this way implies that only 32.5% of the potential transmitting generation remains in residence by 1995. That is, about two-thirds of the transmitting generation has moved away, and any offspring would no longer attend SLPSS schools. Dilution of the class through in-migration and births. Next, we account for dilution of this 32.5% remnant of the transmitting generation by newcomers who have migrated to St Louis, plus their offspring. As before, this influx can be quantified using decennial census five-year migration statistics. They show an influx of 21,391 blacks into St Louis between 1965–1970, 12,134 between 1975–1980, and 16,669 between 1985–1990. The total here (50,194 in-migrants over three five-year periods) averages out to 3,346 per year based

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Table 3. Cumulative depletion of potential transmitting generation through out-migration

Year

Nonwhites/blacks aged 6–17 years in: 1950

1955

1960

1965

1970

1975

1980

0.881 0.881 0.881 0.881 0.881 0.800 0.800 0.779 0.779 –

32,588 28,710 25,294 22,284 19,632 17,296 13,837 11,070 8,624 6,718

47,285 41,658 36,701 32,333 28,485 22,788 18,230 14,201 11,063

61,981 54,605 48,107 42,382 33,906 27,125 21,130 16,461

68,325 60,194 53,031 42,425 33,940 26,439 20,596

74,668 65,783 52,626 42,101 32,797 25,549

62,618 50,094 40,076 31,219 24,320

50,567 40,454 31,514 24,549

20.6%

23.4%

26.6%

30.1%

34.2%

38.8%

48.5%

Overall % still in St Louis by 1995 (all cohorts merged): 32.5%.

PETER A. MORRISON

1950 1955 1960 1965 1970 1975 1980 1985 1990 1995 % of cohort still in St Louis by 1995

Fraction remaining next period


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on the census five-year migration question. Over the entire 25-year period (1965–1990), 3,346 newcomers per year would add 1.51% to St Louis’s black population per year. Cumulative dilution, then, would be about 38% (1.51 × 25). This 38% estimate, however, overstates dilution. Prior to 1981, some of the in-migrants were school-age children who attended SLPSS schools before desegregation in 1981 and could be parents of present-day students. To avoid this complication, we can simply confine our attention to dilution since 1980, thereby understating overall dilution but surely establishing its lower limit. The census migration measures most closely approximating this period are 1975–1980 and 1985–1990. For these two periods, the average influx of blacks into St Louis would have averaged 2,880 per year (one-tenth of 12,134 + 16,669 from above). Those 2,880 newcomers would add 1.39% annually to the city’s (by then smaller) black population. From just 1981 to 1995, then, we can assume an influx of 40,320 blacks (i.e., 2,880 annually for 14 years). Those 40,320 constitute 21.4% of all 1995 black city dwellers (taken to be 188,408 as last enumerated in 1990). Being a lower limit, we can safely assert that over one-fifth of blacks in St Louis in 1995 are newcomers since 1980. As before, accounting for the demographic action leads to important conclusions. First, by 1995 only about one-third of second-generation victims of this once-segregated school system remain in St Louis; the other two-thirds now live (and attend school) somewhere else. Second, at least one-fifth of black students attending SLPSS schools in 1995 cannot be victims of any lingering intergenerational effects attributable to this once-segregated school system, because they moved to St Louis after 1980.

Conclusions Demographic analysis can answer certain generic questions which may arise during the settlement phase of class-action lawsuits: How many claimants will remain by some future date? How prevalent will they be in the population by then? How feasible will it be to redress an injury years later? The accounting approach illustrated here draws on familiar demographic concepts (the cohort, its survival, and the transmission of an effect across cohorts). It then draws on data suited to operationalizing the concepts and follows simple demographic reasoning to draw legally relevant conclusions. The numbers estimated may be only approximate, but with sufficiently conservative assumptions one’s conclusions can be robust for expert testimony. For example:

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• Case 1 conclusion: Future relief in the form of a price cut 10 years after the injury would fail to reach most of those originally overcharged and would bestow an unwarranted windfall on 62 nonvictims for every 100 victims it benefited. • Case 2 conclusion: Most of the victims of St Louis’s once-segregated schools now live somewhere else, and their offspring attend school elsewhere. One-fifth or more of black students now attending St Louis’s public schools cannot themselves be victims of the lingering intergenerational effect being posited. Although other more elegant approaches to these issues are possible, they may be opaque to legal minds. A demographic accounting approach has the advantage of being transparent (albeit tedious), enabling a numerate lawyer or judge to follow its logic and calculations, thereby enhancing the trustworthiness of resulting conclusions.

Notes 1. We have estimated (see text) that domestic in-migration would add 15.2% more households after 1993 and that legal immigration alone would add 5.3% more persons. Combining these two percentages is a crude calculation by which to arrive at a defensible basis for adopting the lower (one-sixth) fraction used here as a minimum. Moreover, migrants are disproportionally young adults of childbearing age. 2. Of course, both the members of this generation and their own parents – i.e., the grandparents of present-day SLPSS students – might well have been in school during this period. For example, a 16-year-old in 1995 could be the child of an 18-year-old parent in 1979 who, in turn, was born to an 18-year-old (now grandparent) in 1961. If all three generations were lifelong residents of St Louis, then both parent and grandparent could have attended school during the era of segregation.

References California Department of Finance (1991). Drivers’ license files as a source of population data: California’s experience, California State Census Data Center Newsletter 9(3): 7–8. California Department of Finance (1997a). Legal Immigration to California, 1984–1994: A Summary. Sacramento. California Department of Finance (1997b). Historical County Population Estimates and Components of Change, July 1, 1990–1996. Sacramento. Hensler, D., Dombey-Moore, B. Gross, J., Moller, E. & Pace, N. (1999). Class Action Dilemmas: Pursuing Public Goals for Private Gain. Santa Monica, CA: RAND Institute for Civil Justice. Hoag, E. (1984). Estimating Annual Migration for California Counties Using Driver License Address Changes. Paper presented at the annual Population Association of America meeting, Minneapolis.


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Johnson, H. P. & Lovelady, R. (1995). Migration Between California and Other States: 1985– 1994. Sacramento: California Research Bureau, California State Library. National Center for Health Statistics (1995). Monthly Vital Statistics Report 44 (3), Tables 2 and 4. Newberg, H. B. & Conte, A. (1992). Newberg on Class Actions, 3rd edn. New York: McGrawHill. Saks, M. J. (1992). Do we really know anything about the behavior of the tort litigation system – and why not?, University of Pennsylvania Law Review 140: 1147–1293. Tidmarsh, J. (1998). Mass Tort Settlement Class Actions: Five Case Studies. Washington, DC: FederaI Judicial Center. US Bureau of the Census (1977). Current Population Reports, Series P-25, No. 701, ‘Gross Migration by County: 1965 to 1970’. Washington, DC: Government Printing Office. Weinstein, J. B. (1995). Individual Justice in Mass Tort Litigation: The Effect of Class Actions, Consolidations, and Other Multiparty Devices. Evanston, IL: Northwestern University Press. Willging, T., Hooper, L. & Niemic, R. (1996). Empirical Study of Class Actions in Four Federal District Courts: Final Report to the Advisory Committee on Civil Rules. Washington, DC: Federal Judicial Center. Wolfman, B. & Morrison, A. (1996). Representing the unrepresented in class actions seeking monetary relief, NYU Law Review 71: 439–513. Address for correspondence: Peter A. Morrison, RAND, 1700 Main Street, Santa Monica, CA 90407, USA Phone: (310) 454-0142; Fax: (310) 459-4871; E-mail: [email protected]