April 11, 2008
Special Compensation for Victims of Terrorist Attacks?
Robert Rabin (Stanford Law) and Stephen Sugarman (Boalt Hall) have just posted an intriguing article entitled "The Case for Specially Compensating the Victims of Terrorist Attacks: An Assessment" on SSRN. The paper was published in the Hofstra Law Review in 2007. The abstract explains:
In light of the daunting prospect of terrorists striking again on the home front, what special measures, if any, should be taken to assure compensation to those killed or injured by such violence? The starting point for any discussion of the compensation of these victims (and their survivors), we believe, is an appreciation of the baseline arrangements our nation has in place for those killed or seriously injured regardless of cause. One policy option would be to leave victims of terrorism to whatever they might obtain from these baseline tort and social welfare compensation systems in default of special treatment. On what basis, if any, should terrorist victims be singled out for different treatment? Is there something about being victims of terrorism that should entitle them and their survivors to be better treated than they would be by Social Security, victims of violent crimes schemes, and the like? Is there something about tort law's application, or non-application to the terrorist setting, that makes a special compensation scheme appropriate for victims of terrorism?
In addressing these questions, there are two basic alternatives to the default solution. One would involve the creation, ex ante, of an ongoing victim compensation fund in anticipation of the occurrence of future terrorist acts. The other would involve the ad hoc creation of a fund established after the occurrence of a terrorist event to provide retrospective compensation to victims. Israel and Northern Ireland are examples of countries with longstanding experience with terrorism, which have adopted legislative schemes of the first sort. In the U.S., the 9/11 Victim Compensation Fund is an example of the ad hoc retrospective approach.
We begin by commenting on the 9/11 Fund itself, setting it in the context of other American compensation schemes that arose out of concerns about the appropriateness of having injury victims seek compensation through tort law. Next, we consider, in turn, the ex ante and ex post options for addressing the claims of terrorist victims. Finally, we return to the default systems mentioned above, raising the question of whether they offer in all, or most, circumstances the most sensible approach to dealing with future incidents of personal injury from terrorist acts.
April 9, 2008
Third Circuit's Recent Preemption Ruling
In a recent case over Paxil and Zoloft, the Third Circuit held that plaintiffs’ failure to warn claims (about the risks of suicide) were preempted. The FDA explicitly refused to order the warnings. Consequently, Judge Solviter concluded that the FDA "actively monitored" the possible suicide risk and concluded that the warnings were "without scientific basis and would therefore be false and misleading." Here’s an excerpt of the Legal Intelligencer’s report:
But Sloviter, who was joined by visiting Judge Jane A. Restani of the U.S. Court of International Trade, emphasized that the ruling was a narrow one.
"Our holding is limited to circumstances in which the FDA has publicly rejected the need for a warning that plaintiffs argue state law requires," Sloviter wrote in Colacicco v. Apotex Inc.
In dissent, 3rd Circuit Judge Thomas L. Ambro said he would have allowed both cases to go forward.
"The FDA has for over three-quarters of a century viewed state tort law as complementary to its warning regulations. Only for the last two years has it claimed otherwise," Ambro wrote.
Ambro said the "sea change" in the FDA's position on pre-emption did not come in the form of a formal regulation that was subject to notice and comment, but in a "preamble" to a regulation. The majority, Ambro said, decided to defer to the FDA because the agency has expertise in deciding the "optimal warnings" drug labels should carry -- not too lax, not too alarmist -- and that "state tort lawsuits would disrupt this fine system."
But Ambro said there is "an important contrary view that has prevailed until recently: state tort law complements FDA provisions on drug warnings, in part by eliciting more information than the FDA would glean otherwise from pharmaceutical manufacturers."
That view, Ambro said, "has, I believe, the better argument in terms of legal doctrine on pre-emption, congressional intent and the history of state tort law alongside federal law."
The cases involved were Colaccicco v. Apotex, Inc. And McNellis v. Pfizer, Inc. Here’s a link to the Third Circuit’s Opinion.
April 8, 2008
RAND on Electronic Discovery
RAND's Institute for Civil Justice has released a report on electronic discovery: James M. Dertouzos et al., The Legal and Economic Implications of Electronic Discovery (2008). Here's a description:
Pretrial discovery — the exchange of relevant information between litigants — is central to the American civil legal process. As computer technologies continue to develop, concerns have arisen that, because of the sheer volume of electronically stored information, requests for electronic discovery (e-discovery) can increase litigation costs, impose new risks on lawyers and their clients, and alter expectations about likely court outcomes. For example, concerns about e-discovery may cause businesses to alter the ways in which they track and store information, or they may make certain types of plaintiffs and defendants more likely to sue, settle out of court, or go to trial. This paper presents the results of an exploratory study to identify the most important legal and economic implications of e-discovery. The authors interviewed plaintiffs and defense attorneys as well as corporate information technology staff and in-house counsel, and they reviewed the current state of e-discovery law and procedure. They then developed a preliminary model to explore the range of plausible effects that e-discovery might have on case outcomes. After summarizing this research, the authors propose five studies that will evaluate how e-discovery affects and is affected by technology, costs, business practices, legal outcomes, and public policy.