Friday, August 1, 2008
Robin Effron (Brooklyn Law) recently posted an article entitled "Disaster-Specific Mechanisms for Consolidation" on SSRN (and forthcoming in the Tulane L. Rev.). Here is the abstract:
Within the past decade, two large scale catastrophes - the terrorist attacks of September 11, 2001 and Hurricanes Katrina and Rita - have been the recent laboratories of new congressional provisions for the federalization and aggregation of mass tort claims. In the case of September 11, the litigation has been shaped by the Air Transportation Safety and System Stabilization Act (ATSSSA) an aggregation device that Congress devised specifically to address that particular catastrophe.
The Hurricane Katrina litigation has seen the use (and attempted use) of the Multiparty, Multiforum Trial Jurisdiction Act (MMTJA), an event jurisdiction device of general application that Congress established in 2002. This article explores three aspects of post-catastrophe litigation where the consolidation of cases, or the statutes that govern the consolidation of such cases, raise issues about how to think about disaster litigation as a singular category. After providing a brief summary of the paths of the September 11th and Canal Breach litigations, this article demonstrates that when the boundaries of federal jurisdiction are shaped by reference to events, this affects how cases may be consolidated, particularly with respect to Congress's degree of specificity in naming an event as the organizing principle of jurisdiction. These two federal statutes challenge courts to consider how closely, as a matter of law, federal jurisdiction based on the ATSSSA and the MMTJA and the consolidation of cases must be linked under these respective statutes. The article then turns to a discussion of the role that courts of appeals play in determining the boundaries of federal jurisdiction and consolidation for disaster litigation. The article ends with a discussion of the practical and administrative concerns of consolidated disaster litigation. I argue that the September 11th and Canal Breach litigations show that there can be a problem for judges and litigants of sorting common from uncommon issues in the context of a district-wide consolidation organized around an event.