Tuesday, February 21, 2017
Academics have been busy this week providing commentary on HR 985, the "Fairness in Class Action Litigation Act of 2017." Here's a round-up of the commentary thus far (and please do let me know if I've missed someone).
John Coffee (Columbia): Download Coffee - How Not to Write a Class Action “Reform” Bill _ CLS Blue Sky Blog
Howard Erichson (Fordham): Download Erichson-hr985-letter
Myriam Gilles (Cardozo): Download Gilles Letter to James Park on HR 985
And mine, Elizabeth Chamblee Burch (Georgia): Download Burch Final Comments on Fairness in Class Action Litigation Act
For those of you who like up to the minute commentary, several academics and reporters keep very active twitter accounts that track the bill: @adam_zimmerman, @elizabethcburch, @HowardErichson, @PerryECooper
Saturday, February 18, 2017
Class actions and MDL have real problems that need fixing. I have written about these problems at length, most recently in Aggregation as Disempowerment. But the new bill that just passed the House Judiciary Committee does not fix any of the real problems. Instead, it is a crass attempt to undermine any effort by plaintiffs to seek justice in mass disputes.
The bill, H.R. 985, the "Fairness in Class Action Litigation Act of 2017," seeks to reduce defendants' exposure to liability for mass harms by tightening the standard for class certification, imposing an ascertainability requirement, delaying the payment of class counsel fees, limiting the use of issue class actions, expanding diversity jurisdiction, mandating Lone Pine orders in MDL, banning trials in MDL, and capping MDL personal injury attorneys' fees at 20%, among other things. As Beth Burch noted, the bill does not make things fairer for those who have been wronged.
I would like to see thoughtful reforms to help courts distinguish meritorious from non-meritorious claims. I would like to see thoughtful reforms to protect claimants from unfair settlements in both class actions and MDL. And I would like to see thoughtful reforms to ensure that fees reflect what lawyers actually accomplish, not inflated settlement valuations. The abuses in class actions and non-class mass litigation happen mostly in settlement, not litigation and adjudication. But that is not what this bill would address. Instead, its provisions are aimed mostly at protecting defendants from the kinds of class actions and mass litigation that actually empower consumers, employees, citizens, and others to fight corporate and government wrongdoing.
Even where the bill aims at real problems (such as its provision to expand diversity jurisdiction to reach plaintiffs suing diverse defendants but who join with a non-diverse plaintiff), it goes too far, failing to match its solution to the problem of magnet jurisdiction in nationwide mass disputes.
In my letter to Congressional leaders, I attempt to explain which of the provisions of H.R. 985 are especially problematic, and why. If you're interested, you can find the letter here:
Monday, February 13, 2017
The U.S. House of Representatives is considering a bill that would substantially curtail the usefulness of class actions and multidistrict litigation, but would not make things "fairer" for class members.
Alison Frankel has a great write-up on the proposal that includes my preliminary comments along with Professor Myriam Gilles's comments. I'm heartened that representatives are reaching out to academics, because I have a number of concerns with the bill's proposals. If you are likewise concerned, then you should weigh-in, too. The House is marking up the bill on Wednesday.
My comments are available here: Download Final Comments on Fairness in Class Action Litigation Act
Tuesday, December 27, 2016
Tuesday, December 20, 2016
I received the following announcement from David Marcus:
We are excited to announce the third annual Civil Procedure Workshop, to be co-hosted by the University of Arizona Rogers College of Law, the University of Washington School of Law, and Seattle University School of Law. The CPW will be held at the University of Arizona in Tucson on November 3-4, 2017.
The CPW gives both emerging and established civil procedure scholars an opportunity to gather with colleagues and present their work to an expert audience. Scholars will present their papers in small panel sessions. A senior scholar will moderate each panel and lead the commentary. In addition to paper presentations, we intend to engage members of the judiciary and federal civil rulemaking bodies in discussions about current developments in procedure. Our ongoing goal is for the CPW to strengthen the study of procedure as an academic discipline, and to deepen ties among the academy, rulemakers, and the judiciary.
Confirmed participants for 2017 include the Hon. David Campbell, Allen Erbsen, Margaret Lemos, Troy McKenzie, Mark Moller, the Hon. Lee Rosenthal, Elizabeth Schneider, Norman Spaulding, and Beth Thornburg. We welcome all civil procedure scholars to attend. Those wishing to present a paper for discussion should submit a two-page abstract by March 1, 2017. While we welcome papers from both emerging and senior scholars, preference may be given to those who have been teaching for less than ten years. We will select papers to be presented by April 15, 2017. Please send all submissions or related questions to Dave Marcus.
The CPW will provide meals for registrants. Participants must cover travel and lodging costs. We will provide information about reasonably priced hotels as the date approaches. Feel free to contact us with questions.
Dave Marcus (Arizona), dmarcus at email.arizona.edu
Liz Porter (UW), egporter at uw.edu
Brooke Coleman (Seattle U), colemanb at seattleu.edu
Friday, November 18, 2016
Hi Everyone! I am happy to announce that my home institution has organized the inaugural Miami Class Action and Complex Litigation Forum, scheduled for December 2, 2016 - only 2 weeks away! This is a great event for to those interested in mass tort and similarly complex litigation.
The program contains federal judges who handle the largest MDL cases, members of the MDL Panel, the President of the National Association of Attorneys Generals and 14 of the top class action practitioners. The organizers are trying to keep the attendance to a select number this year so everyone can ask questions and enjoy an intimate cocktail reception, but they have a few slots still remaining. Registration information, as well as other information, can be found here: http://www.law.miami.edu/academics/continuing-legal-education-cle/class-action-forum.
The Panels include the following judges and attorney general:
Judge David Proctor (N.D. Ala. and MDL Panel)
Judge Robin Rosenbaum (11th Circuit Court of Appeals)
Judge Eldon Fallon (E.D. La.)
Judge David Herndon (S.D. Ill.)
Judge Susan Illston (N.D. Cal.)
Judge Brian Cogan (E.D. N.Y.)
Judge Kathryn Vratil (D. Kan.)
Judge Michael Hanzman (11th Judicial Cir. Miami-Dade County)
Attorney General Marty J. Jackley (President of National Association of Attorney Generals)
The Panels also include the following practitioners and academics with the judges:
Moderator: Adam Moskowitz, Kozyak Tropin Throckmorton, LLP, Adjunct Professor of Class Action Litigation, University of Miami School of Law
Joseph Whatley, Whatley Kallas, LLP
Frank Burt, Carlton Fields Jorden Burt, P.A.
Jack Scarola, Searcy Denney Scarola Barnhart & Shipley
Marty Steinberg, Hogan Lovells
Jonathan Marks, Marks Mediation
Moderator: Peter Prieto, Podhurst Orseck, P.A.
Steve Berman, Hagens Berman Sobol Shapiro LLP
Robert Hilliard, Hilliard Munoz Gonzalez LLP
Mark Lonergan, Severson & Werson
Brian Fitzpatrick, Professor of Law, Vanderbilt Law School
Moderator: Sergio Campos, Professor of Law, University of Miami School of Law
Elizabeth J. Cabraser, Lieff Cabraser Heimann & Bernstein, LLP
Dan Girard, Girard Gibbs LLP
Edith Kallas, Whatley Kallas LLP
Moderator: Lance A. Harke, Harke Clasby & Bushman LLP
Jeanne Finegan, President, Heffler Claims Group/Heffler Media, LLC
Steven Marks, Podhurst Orseck, P.A
Harley S. Tropin, Kozyak Tropin Throckmorton, LLP
Charles Zimmerman, Zimmerman Reed, LLP
Monday, September 26, 2016
Somehow I missed Alison Frankel's report on a consumer class action in Texas spurred by solicitations to join a mass tort. Here is the report:
It's like she wrote my complex litigation exam for me. ADL
Sunday, September 18, 2016
Professors Andrew Bradt (UC Berkeley Law) and D. Theodore Rave (U. Houston Law) have posted to SSRN their article, The Information-Forcing Role of the Judge in Multidistrict Litigation, Cal. L. Rev. (forthcoming). Here is the abstract:
In this article, we address one of the most controversial and current questions in federal civil procedure: What is the proper role of the judge in the settlement of mass-tort multidistrict litigation, or MDL? Due to the Supreme Court’s hostility to class actions, MDL proceedings have begun to dominate the federal civil docket. To wit, nearly half of the federal civil caseload is MDL. Although MDL is structurally different from a class action, the procedure replicates — and in many ways complicates — the principal-agent problems that plagued the class action. Like a class action, nearly all MDL cases are resolved by a comprehensive global settlement agreement, but, unlike a class action, in MDL the judge has no authority to reject a settlement agreement as unfair to the potentially thousands of parties ensnared in the litigation. Here, we argue that, given this limitation, the judge should act as an “information-forcing intermediary,” who reserves the right to offer a non-binding opinion about the fairness of the settlement to send an easy-to-understand signal directly to the parties about their lawyers’ performance. Such a signal will mitigate many of the agency problems inherent to MDL and allow parties to exercise informed consent when choosing whether to accept a settlement. More generally, this article is a call for judges to embrace an information-forcing role at the head of consolidated MDL proceedings.
Friday, September 2, 2016
Adam Zimmerman of Loyola and Michael Sant'Ambrogio of Michigan State have just posted on SSRN a draft of their new article, Inside the Agency Class Action, forthcoming in the Yale Law Journal. Here is the abstract:
Federal agencies in the United States hear almost twice as many cases each year as all the federal courts. But agencies routinely avoid using tools that courts rely on to efficiently resolve large groups of claims: class actions and other complex litigation procedures. As a result, across the administrative state, the number of claims languishing on agency dockets has produced crippling backlogs, arbitrary outcomes and new barriers to justice.
A handful of federal administrative programs, however, have quietly bucked this trend. The Equal Employment Opportunity Commission has created an administrative class action procedure, modeled after Rule 23 of the Federal Rules of Civil Procedure, to resolve “pattern and practice” claims of discrimination by federal employees before administrative judges. Similarly, the National Vaccine Injury Compensation Program has used “Omnibus Proceedings” resembling federal multidistrict litigation to pool common claims regarding vaccine injuries. And facing a backlog of hundreds of thousands of claims, the Office of Medicare Hearings and Appeals recently instituted a new “Statistical Sampling Initiative,” which will resolve hundreds of common medical claims at a time by statistically extrapolating the results of a few hearing outcomes.
This Article is the first to map agencies’ nascent efforts to use class actions and other complex procedures in their own hearings. Relying on unusual access to many agencies — including agency policymakers, staff and adjudicators — we take a unique look “inside” administrative tribunals that use mass adjudication in areas as diverse as employment discrimination, mass torts, and health care. In so doing, we unearth broader lessons about what aggregation procedures mean for policymaking, enforcement and adjudication. Even as some fear that collective procedures may stretch the limits of adjudication, our study supports a very different conclusion: group procedures can form an integral part of public regulation and the adjudicatory process itself.
The article is a culmination a project both Adam and Michael initiated with the publication of their article The Agency Class Action in 2012. Since then Adam and Michael were asked by the Administrative Conference of the United States to study the actual use of class action-type procedures in agency proceedings, which culminated in a report released this summer (for background, check out my JOTWELL submission here). The new draft article analyzes the results of that study. The article should be of great interest for mass tort practitioners, particularly those who litigate (or who contemplate litigating) in agencies in addition to courts. I cannot recommend it highly enough!
Tuesday, August 16, 2016
As our readers surely know, despite its bulky name, multidistrict litigation (“MDL”) is in the news constantly: litigation over Volkswagen's defeat device, GM’s ignition defect, Toyota’s sudden acceleration, asbestos, and medical drugs and devices (pelvic mesh, Yasmin/Yaz, NuvaRing, Vioxx) are just a few of the higher profile MDLs.
MDL now comprises over 36% of the entire federal civil caseload (that number leaps to 45.6% if you exclude social security and prisoner cases), yet courts and Congress have made it more difficult for these cases to proceed as certified class actions. This litigation doesn’t go away without class certification as many tort reformers believe, it simply persists with far less judicial oversight.
Few rules and little appellate oversight on the one hand, plus multi-million dollar “common-benefit fees” for the lead lawyers who shepherd these cases toward settlement on the other may tempt a cadre of repeat attorneys to fill in the gaps in ways that further their own self interest. (Because there are so many cases involved, judges appoint "lead lawyers" to litigate and negotiate on behalf of the entire group of plaintiffs; if their individual attorney isn’t a lead lawyer, then that attorney has little say in how the litigation is conducted.)
To shed light on some of these issues, my co-author, Margaret Williams, and I have posted a revised version of our paper, Repeat Players in Multidistrict Litigation: The Social Network (forthcoming, Cornell Law Review) on SSRN.
We collected data on who the lead attorneys are (plaintiff and defense side) in all product-liability and sales practice cases that were pending on the MDL docket as of May 2013 (those cases covered a 22-year span), built an adjacency matrix, and employed a two-mode (actors and events) projection of a bipartite network (also known as an affiliation network) to graph the ties between lawyers judicially appointed to leadership positions (the actors) in multidistrict proceedings (the events). (For the non-statistically inclined, this social network analysis is somewhat akin to the kind that Facebook has popularized.)
The point was to reveal what the naked eye cannot see: how those attorneys and MDLs connect to one another. (Detailed, searchable PDFs of the social network with the players and litigations are available here). We also collected data on the publicly available nonclass settlements that repeat players brokered, reviewed news and media accounts of those litigations, and analyzed the common-benefit fees awarded to the lead plaintiffs' lawyers.
Here’s a summary of our key findings:
- Repeat players are prevalent on both the plaintiff and the defense side.
- No matter what measure of centrality we used, a key group of 5 attorneys maintained their elite position within the network.These 5 attorneys may act as gatekeepers or toll takers, for example. This matters considerably, for lead lawyers control the proceeding and negotiate settlements. They can bargain for what may matter to them most: defendants want to end lawsuits, and plaintiffs’ lawyers want to recover for their clients and receive high fee awards along the way.
- By identifying settlement provisions that one might argue principally benefit the repeat players, we examined the publicly available nonclass settlements these elite lawyers designed. Over a 22-year span, we were unable to find any deal that didn’t feature at least one closure provision for defendants, and likewise found that nearly all settlements contained some provision that increased lead plaintiffs’ lawyers’ common-benefit fees. Bargaining for attorneys’ fees with one’s opponent is a stark departure from traditional contingent-fee principles, which are designed to tie lawyers’ fees to their clients’ outcome.
- Based on the evidence available to us, we found reason to be concerned that when repeat players influence the practices and norms that govern multidistrict proceedings—when they “play for rules,” so to speak—the rules they develop may principally benefit them at the plaintiffs’ expense.
A highly concentrated plaintiff and defense bar is nothing new, nor is the disquiet about where that concentration may lead. As scholars have long recognized, repeat play tends to regress our adversarial system from its confrontational roots toward a state of cooperation.
In the criminal context, prosecutors and public defenders routinely work together through plea bargaining, leading them toward mutual accommodation; incumbents form a primary community of interest, whereas clients present secondary challenges and contingencies. As such, adversary features are often overshadowed by regulars’ quid pro quo needs. As Professor Jerome Skolnick has explained, those working group relationships become a social control problem only once they reach a “tipping point where cooperation may shade off into collusion, thereby subverting the ethical basis of the system.” (Social Control in the Adversary System, 11 J. Conflict Resol. 52, 53 (1969)).
As I’ve argued in a separate article, Monopolies in Multidistrict Litigation, we've reached that tipping point in MDL, and these circumstances warrant regulation. Even though MDL judges are the ones who entrench and enable repeat players, they also are integral to the solution.
By tinkering with lead-lawyer selection and compensation methods and instilling automatic remands to a plaintiff’s original court after leaders negotiate master settlements, judges can capitalize on competitive forces already in play. Put simply, the antidote is to reinvigorate competition among plaintiffs’ attorneys and I’ve set forth several specific proposals for doing so in Part III of Monopolies in Multidistrict Litigation.
For interested judges, that article's appendix also contains a Pocket Guide for Leadership Appointment and Compensation, a Sample Leadership Application form, and sample orders for suggesting remand and replacing leaders who ignore adequate representation concerns.
August 16, 2016 in Aggregate Litigation Procedures, Current Affairs, Ethics, Lawyers, Mass Tort Scholarship, Pharmaceuticals - Misc., Prempro, Procedure, Products Liability, Settlement, Vioxx | Permalink | Comments (0)
Monday, July 25, 2016
Sergio Campos has a great new review on JOTWELL of an important report from Adam Zimmerman and Michael Sant'Ambrogio. The report concerns the use of aggregation techniques in administrative agencies and is both conceptually and practically interesting. Both the review and the report are worth reading!
Saturday, July 2, 2016
Hillel Bavli on the Logic of Comparable-Case Guidance in the Determination of Awards for Pain and Suffering and Punitive Damages
Hillel Bavli (Ph.D. Candidate in Statistics in Law & Governance, Harvard; Counsel, Boies, Schiller & Flexner LLP) has posted to SSRN his article, The Logic of Comparable-Case Guidance in the Determination of Awards for Pain and Suffering and Punitive Damages, U. Cin. L. Rev. (forthcoming 2016). Here is the abstract:
Little guidance is provided to fact-finders in arriving at awards for pain and suffering and punitive damages. Such awards are therefore highly variable. This article explains why methods involving comparable-case guidance — information regarding awards in comparable cases as guidance for determining damage awards — are generally effective in reducing unpredictability and improving the reliability of awards for pain and suffering and punitive damages. The article addresses major objections to such methods, and provides relevant legal context and direction for implementation.
Professor Alexander Lemann (Research Fellow & Adjunct Professor, Georgetown Law) has posted to SSRN his article, Coercive Insurance and the Soul of Tort Law, 105 Geo. L.J. (forthcoming 2016). Here is the abstract:
Scholars have long accepted the idea that there are alternatives to the tort system, particularly insurance, that are better at compensating victims than tort law. Tort law remains necessary, it has been assumed, because insurance lacks the ability to deter conduct that causes harm, and indeed it sometimes creates a moral hazard that increases incentives to engage in risky conduct. Scholars of insurance law, however, have observed that insurance has at its disposal a variety of tools that can help deter risky conduct. Recent technological developments lend dramatic support to this account. New telematics devices being used in automobiles can track acceleration, braking, and even whether a car is exceeding the speed limit on a particular road, allowing insurance companies to identify and penalize individual acts of negligent driving in real time. Insurance can now, in many cases, deter risky conduct more effectively than tort law. And yet tort law incorporates values that insurance cannot.
While much attention has been paid to the implications of these developments for insurance law, the implications for tort theory have been largely ignored. This Article fills that gap. Where insurance coverage is mandatory and premiums are adjusted based on individual acts by individual customers, “coercive insurance” can be understood as a liability rule just like tort law. Comparing the mechanisms by which these systems deter risky conduct, I argue that coercive insurance’s abandonment of certain features central to tort law makes it inherently more efficient in dealing with certain risks. Coercive insurance thus helps resolve the ongoing debate between efficiency and rights-based theories of tort law, undermining the claim that tort law is best understood as a system for achieving efficient deterrence and lending support to the idea that concepts like corrective justice and civil recourse theory are necessary to explain tort law’s purpose and structure.
Tuesday, June 28, 2016
The parties litigating over Volkswagen's emissions defeat device have submitted a proposed class action settlement to Judge Breyer for his approval. After the parties confer with him on June 30, he'll hear arguments over whether to approve that settlement on July 26.
The proposed settlement is available here: Download 1. The settlement money available to class members is a fund of $10,033,000,000, which is based on an assumed 100% buyback of all eligible vehicles and leased eligible vehicles.
If approved, parties who wish to object or opt out must do so before September 16, 2016 (p. 27 describes the opt-out process, which will have to be approved in conjunction with the notice to class members, and p. 28 describes the objection process). Class members must likewise complete and submit a valid claim form before September 1, 2018, and decide on their chosen remedy by December 30, 2018. Put differently, class members will need to take affirmative action to receive relief. Failing to submit a claim or to opt out means that their claims will be extinguished under the settlement (and through general res judicata principles).
The proposal provides VW owners with several options. They can:
- sell their car back to VW for the "vehicle value" (a term of art defined in the settlement on p. 16);
- receive restitution payments calculated based on a percentage of the vehicle value (some owners are eligible for loan forgiveness up to 30% of the vehicle value and owner restitution payment) - an estimate of those settlement payments is available here - Download 7
- terminate their car leases with no early termination penalty;
- modify their vehicle, which should help fix the emissions problems based on the different vehicles;
- or may receive both a restitution payment and a vehicle modification.
An overview of the options available to class members and proposed allocation plan is available here: Download 2
And the proposed short form notice, which is refreshingly straightforward is available for download here: Download 3. The longer notice is here: Download 4. And detailed information on the proposed 5-step claims program and administration is available here: Download 5.
Saturday, June 25, 2016
New Book on Class Actions in Context: How Culture, Economics and Politics Shape Collective Litigation
A new book, Class Actions in Context: How Culture, Economics and Politics Shape Collective Litigation, has been published by Edward Elgar Publishing (also available on Amazon). The editors of the book are Associate Dean Deborah Hensler (Stanford Law) and Professors Christopher Hodges (Oxford) and Ianika Tzankova (Tilburg Law). A global group of aggregate-litigation scholars contributed to the book, including Dean Camille Cameron (Dalhousie Law, Canada); Associate Dean Manuel Gomez (Florida International Law); Professors Agustin Barroilhet (U. Chile Law), Naomi Creutzfeldt (Research Fellow, Oxford), Axel Halfmeier (Leuphana U., Germany), Kuo-Chang Huang (Member, Taiwan national congress and formerly of National Cheng-Chi U., Taiwan), Jasminka Kalajdzic (Windsor Law, Canada), Alon Klement (Tel-Aviv U., Israel), Elizabeth Thornburg (SMU Law), and Stefaan Voet (U. Leuven & U. Hasselt, Belgium); and myself.
I authored a chapter, The promise and peril of media and culture: The Toyota unintended acceleration litigation and the Gulf Coast Claims Facility in the United States, and Professor Ianika Tzankova and I co-authored another chapter, The culture of collective litigation: A comparative analysis.
The book was a remarkable and fascinating undertaking, with many of us contributors gathering at several conferences across the globe over recent years to discuss and compare our ongoing research. Here is a brief description of the book:
In recent years collective litigation procedures have spread across the globe, accompanied by hot controversy and normative debate. Yet virtually nothing is known about how these procedures operate in practice. Based on extensive documentary and interview research, this volume presents the results of the first comparative investigation of class actions and group litigation ‘in action’.
Produced by a multinational team of legal scholars, this book spans research from ten different countries in the Americas, Europe, Asia and the Middle East, including common law and civil law jurisdictions. The contributors conclude that to understand how class actions work in practice, one needs to know the cultural factors that shape claiming, the financial arrangements that enable or impede litigation and how political actors react when mass claims erupt. Substantive law and procedural rules matter, but culture, economics and politics matter at least as much.
This book will be of interest to students and scholars of law, business and politics. It will also be of use to public policy makers looking to respond to mass claims; financial analysts looking to understand the potential impact of new legal instruments; and global lawyers who litigate transnationally.
We are honored that Professor Geoffrey Hazard (Emeritus, UC Hastings Law & Penn Law) offered the following comment on the book:
Class Actions in Context is a penetrating analysis of class and group actions worldwide. A group of international scholars brings to bear legal, economic, and political analyses of this evolving judicial remedy. It explores various substantive claims ranging from consumer protection to securities litigation. Drawing on case studies of practice as well as legal analysis, it demonstrates the importance of factors running from litigation finance to background cultural traditions. It is worth study in every legal system.
Professor Wendy Parmet (Northeastern Law) has posted to SSRN her article, Paternalism, Self-Governance, and Public Health: The Case of E-Cigarettes, 70 U. Miami L. Rev. 879 (2016). Here is the abstract:
This article develops a normative framework for assessing public health laws, using the regulation of e-cigarettes as a case study. Although e-cigarettes are likely far less dangerous to individual users than traditional cigarettes, it remains uncertain whether their proliferation will lead to a reduction of smoking-related disease and deaths or to increased morbidity and mortality. This scientific uncertainty presents regulators with difficult challenges in determining whether and how to regulate e-cigarettes. This article presents a normative framework for analyzing such questions by offering three justifications for public health laws: impaired agency, harm to others, and self-governance. Each justification responds to the common charge that public health laws are impermissibly paternalistic. The self-governance rationale, which is the most robust, and most reflective of public health’s own population perspective, has been the least theorized. This article develops that theory, examining the basis for the justification as well as its limitations. The article then applies its normative framework to the regulation of e-cigarettes, focusing on the FDA’s so-called deeming regulations, which at the time the article was written were pending but have since been promulgated in a substantially similar form. The article supports the FDA’s ultimate decision to ban the sales of e-cigarettes to minors and to require the disclosure of warning labels based upon the impaired agency rationale. However, the scientific uncertainty renders the harm rationale inadequate. As a result, the regulations’ pre-market review requirement must rely on the self-governance rationale for its normative justification. Given the lack of clear legislative guidance and political engagement, the article concludes that the pre-market review provisions are normatively problematic: if public health advocates want to claim the mantle of self-governance, they must take it seriously.
Thursday, June 16, 2016
On Bloomberg BNA Perry Cooper has an important article on MDL leadership fights entitled "MDLs Led By the Usual Suspects, and Not Everyone is Happy."
Our own Prof. Burch's work is featured. Cooper writes "Burch, a professor at the University of Georgia Law School in Athens, Ga., who specializes in complex litigation, said she's troubled by the number of “repeat players” she sees among attorneys that represent both plaintiffs and defendants in MDLs."
Elizabeth Cabraser, a frequent leader in MDLs, explains: "The problem for getting new players into the leadership is that there are economic barriers to entry,” she said. “To be part of the leadership you have to write a check. You have to put up the money and spend the time.” Cabraser also links the developments in MDLs to changes in the legal culture. As Cooper quotes her: “We all became plaintiffs’ attorneys because we didn't want to work for big firms—we wanted to do our own thing,” she said. “But in an MDL everything is by committee.”
The article also has some good tidbits on Bellwether trials. One plaintiffs lawyer explains: "Large verdicts in bellwether trials can be great from a plaintiff's perspective, Berezofsky said, but they can give clients an expectation that the resolution of their case will be in keeping with the verdict." This lawyer says that for claimants in the middle of the bell curve, an MDL saves money and time, but not for claimants who have more severe injuries because "global settlements generally don't take into account their individual, specialized injuries."
You can find the paper detailing Burch's findings, Monopolies in MDL Litigation, on SSRN.
Brooke Coleman (Seattle) has posted "One Percent Procedure" on SSRN. Here is the abstract:
In this election year, political rhetoric about the one percent is already pervasive, as those with the greatest concentrated wealth prosper and the remaining population stagnates. Because of their affluence, the one percent exercise disproportionate control over political and economic systems. This Article argues that federal civil procedure is similarly a one percent regime. The crème de la crème of the bench and bar, along with equally exclusive litigants, often engage in high-stakes, complex civil litigation. It is this type of litigation that dominates both the elite experience and the public perception of what civil litigation is. This litigation is not particularly common, however; while expensive and well known, it is in the minority. Yet this litigation and the individuals engaged in it have an incongruent influence on how the Federal Rules of Civil Procedure and procedural doctrine develop. They create one percent procedure.
This Article interrogates and connects disparate phenomena related to civil litigation, including the recent discovery amendments and the rise of multidistrict litigation. It demonstrates that the elite — those who are deeply steeped in complex, high-stakes litigation — are setting the agenda and determining the rules for how the entire civil litigation game is played. It further argues that the benefits of a one percent procedure system — notably expertise of the participants — are not worth the costs; indeed, that expertise can be detrimental to the design of a civil litigation system.
As in politics and economics, a system that gives too much control to the one percent risks undervaluing and underserving the remaining ninety-nine. Using social and political science, the Article argues that the homogenous policymaking of one percent procedure creates suboptimal results. The Article concludes that the structures giving rise to one percent procedure must be modified and proposes a set of reforms intended to allow the ninety-nine percent representation in, and access to, the process of constructing our shared civil litigation system.
Sunday, May 29, 2016
Professors John C.P. Goldberg (Harvard Law) and Benjamin Zipursky (Fordham Law) have posted to SSRN their forthcoming article, The Myths of MacPherson, 9 J. Tort L. (forthcoming 2016). Here is the abstract:
For a symposium marking the centenary of MacPherson v. Buick, we identify three common characterizations of Cardozo’s famous opinion that purport to explain its importance. Unfortunately, each of these characterizations turns out to be a myth. MacPherson is worthy of celebration, but not because it recognizes that negligence law’s duty of care is owed to the world, nor because it displays the promise of an instrumental, policy-oriented approach to adjudication, nor because it embraces a nascent form of strict products liability. These myths of MacPherson reflect deep misunderstandings of tort law, and of Cardozo’s distinctively pragmatic approach to adjudication. Ironically, although they have been largely fostered by progressives, the myths lend support to the cause of modern tort reform. By contrast, an accurate appreciation of MacPherson’s virtues permits an understanding of negligence, tort law, and common law adjudication that provides grounds for resisting regressive reforms.
Professor Alexandra Lahav (Connecticut Law), who is also an editor of the Mass Tort Litigation Blog, has posted to SSRN her forthcoming article, The Roles of Litigation in American Democracy, 65 Emory L.J. (forthcoming 2016). Here is the abstract:
Adjudication is usually understood as having two functions: dispute resolution and law declaration. This Article presents the process of litigation as a third, equally important function. Through the repeated performance of litigation, participants perform rule of law values and in so doing, form a collective democratic identity. Litigation does this in five ways. First, it allows individuals, even the most downtrodden, to obtain recognition from a governmental officer (a judge) of their claims. Second, it promotes the production of reasoned arguments about legal questions and presentation of proofs in public, subject to cross examination and debate. Third, it promotes transparency by forcing information required to present proofs and arguments to be revealed. Fourth, it aids in the enforcement of the law in two ways: by requiring wrongdoers to answer for their conduct to the tribunal and by revealing information that is used by other actors to enforce or change existing regulatory regimes. And fifth, litigation enables citizens to serve as adjudicators on juries. Unlike other process-based theories of the benefits of litigation, the theory presented here does not hinge on the sociological legitimacy of procedures or outcomes. The democratic benefits of these performances ought to be considered in the reform of procedural rules.