Thursday, May 15, 2008
Hot off the presses, here's Timothy Lytton's new book on the Catholic Church sex abuse litigation -- Holding Bishops Accountable: How Lawsuits Helped the Catholic Church Confront Clergy Sexual Abuse (Harvard University Press 2008). The book builds on Lytton's related work of the past few years. Here's the abstract as posted on SSRN:
The sexual abuse of children by Catholic clergy is arguably the most acute crisis Catholicism has faced since the Reformation. The prevalence of clergy sexual abuse and its shocking cover-up by church officials have obscured the largely untold story of the tort system's remarkable success in bringing the scandal to light, focusing attention on the need for institutional reform, and spurring church leaders and public officials into action.
Stories of the tort system as an engine of social justice are rare. Holding Bishops Accountable tells one such story by revealing how pleadings, discovery documents, and depositions fueled media coverage of the scandal. Timothy Lytton shows how the litigation strategy of plaintiffs' lawyers gave rise to a widespread belief that the real problem was not the actions of individual priests but rather the church's massive institutional failure. The book documents how church and government policymakers responded to the problem of clergy sexual abuse only under the pressure of private lawsuits.
As Lytton deftly demonstrates, the lessons of clergy sexual abuse litigation give us reason to reconsider the case for tort reform and to look more closely at how tort litigation can enhance the performance of public and private policymaking institutions.
I just posted a piece that I wrote for the Tulane Law Review Symposium on the Problem of Multidistrict Litigation on bepress (download here) and SSRN (download here). The piece should appear on both these links shortly. Here is the abstract:
This essay, written for the Tulane Law Review Symposium on the Problem of Multidistrict Litigation, argues that the focus of proceduralists on centralization as a solution to the problems posed by modern litigation is misplaced. It is time to refocus on the social value of the multiple centers of authority that jurisdictional redundancy permits. This essay presents the case for multi-centered litigation with particular focus on the potential uses of the Multidistrict Litigation Act to realize pluralist values. The descriptive claim put forward by the essay is that jurisdictional redundancy is imbedded in our federalist system and our preference for adversarial adjudication. The normative claim is that judges and scholars should take more seriously the social benefits of pluralism offered by jurisdictional redundancy. In furtherance of this goal, I suggest three factors that judges and policy-makers consider in determining the level of centralization appropriate in a given case: (i) the extent and nature of underlying substantive disagreement, (ii) the costs of inconsistency, and (iii) the role of political power in the litigation. The question judges, legislators and scholars should ask is not only how much pluralism our system of adjudication can tolerate, but also how much uniformity we should expect in a pluralist society.
David Marcus of the University of Arizona has written an extensive book review of Richard Nagareda's Mass Torts in a World of Settlement. The review, entitled Some Realism about Mass Torts, will appear in the University of Chicago Law Review. Here's the abstract:
This essay reviews Richard Nagareda's Mass Torts in a World of Settlement. Nagareda argues that the settlement of a mass tort is an act of governance because it involves the exchange of rights to sue of large classes of plaintiffs for a compensation regime. Some source of legitimacy must give plaintiffs' attorneys, who lack contractual relationships with these plaintiffs, the power to alter these pre-existing rights as fixed by substantive law. Litigation-centered ideals of due process, Nagareda concludes, fall short because they emphasize individual autonomy and thus preclude the sort of mandatory representation settlement requires. He turns to rulemaking to solve the problem of legitimate governance. Agencies should adopt mass tort settlements as public rules.
Masterfully dissecting most of the major mass tort settlements of the past decade, Nagareda convincingly explains how and when mass torts settle, as well as why these settlements often fail. Where Nagareda's otherwise realist account takes a formalist turn is with his claim that plaintiffs have pre-existing rights to sue fixed by substantive law. I argue that a realist account of rights to sue includes procedural avenues for their attempted vindication, as well as their substantive contours, as essential components. This account supports the entity theory of the class action that treats the class as something different than merely an assemblage of individual litigants. The entity theory in turn justifies less scrupulous attention to the due process rights of individual class members. Since these due process rights have often precluded settlement, the entity theory offers a theoretical avenue around some of the difficulties that Nagareda believes justifies a turn to rulemaking.
Wednesday, May 14, 2008
As reported in the New York Times by the Associated Press. The plaintiff in Garza v. Merck initially won $32 million, which was reduced to $7.75 million. The AP reports that "the Texas Fourth Court of Appeals overturned the verdict, ruling that the defendants had not proven that Mr. Garza’s history of heart disease could not have been the cause of his fatal heart attack in 2001."
The article goes on to note "After the trial, a juror admitted borrowing thousands of dollars from Mr. Garza’s widow, Felicia Garza, although that does not seem to have been a factor in Wednesday’s appellate court decision." Yipes!
While not specific to mass torts, Kevin Clermont has posted his latest empirical work, Litigation Realities Redux, which is broadly applicable to the litigation process.
Here's the abstract:
Both summarizing recent empirical work and presenting new observations on each of the six phases of a civil lawsuit (forum, pretrial, settlement, trial, judgment, and appeal), the author stresses the needs for and benefits from understanding and using empirical methods in the study of the adjudicatory system's operation.