Saturday, March 14, 2009
I've just posted a draft of my article, "Litigating Groups," on SSRN. It is the beginning of a new approach to nonclass aggregation, one that is based principally on group cooperation and social norms. Although it's principally a theoretical piece, its goal is to reallocate the litigating power to the claimants rather than the attorneys. Accordingly, unlike most scholarship on the topic, it does not concede that the plaintiffs' attorney rightly acts as the fulcrum in aggregate litigation such as Vioxx. Instead, it proposes that increased group cohesion can both restore the tether between attorneys and their clients and reallocate control to claimants. The article's core contention is that groups of plaintiffs may have (or could be made to have) organic or indigenous origins such that social norms and moral obligations provide an internally coercive force keeping litigants together and preventing them from holding out when doing so might harm the group as a whole.
Here's the abstract:
Large-scale litigation, such as the Vioxx, Zyprexa, and asbestos cases, breeds conflict. Conflicts arise between attorneys and their clients (agency problems), plaintiffs and other plaintiffs (group problems), and plaintiffs' attorneys and other plaintiffs' attorneys (competition problems). Although these cases cannot be certified as class actions, they still proceed en masse to achieve economies of scale and present a credible threat to defendants. Assuming that coordinating and consolidating large-scale litigation is systemically desirable, this Article explores a new approach to removing the group and agency problems that increase aggregate litigation's costs and undermine its normative goals such as fairness, compensation, and deterrence.
Unlike traditional scholarship that emphasizes individual autonomy or welfare maximization, this Article borrows from the literature of moral and political philosophy as well as social psychology to analyze group dynamics within nonclass aggregation. It requires us to view plaintiffs within large-scale litigation as a community of sorts and to recognize that sometimes litigants incur obligations simply by virtue of being a group member, whether chosen or not and whether welfare maximizing or not. Moreover, empirical studies demonstrate that once people consider themselves part of a group, they exhibit other-regarding preferences-trust, reciprocity, and altruism-toward other members. Cohesive group members are more likely to cooperate with one another and care about the collective outcome, and less likely to exit the group when doing so benefits the individual rather than the group. In the face of hard cases, of instability and disunity, plaintiffs who have made promises and assurances to one another can invoke social norms of promise-keeping, social agglomeration, compatibility, and the desire for means-end coherence to achieve consensus, mitigate client-client conflicts, and restore the tether between clients and their attorney. Thus, using groups to overcome the problems in nonclass aggregation not only makes sense from a group responsibility perspective, it may also harmonize with wealth maximization and individual autonomy goals.
I would, of course, welcome comments (firstname.lastname@example.org). Because of the law review word limit constraints, this piece only touches on implementation methods that will be fleshed out more fully in the next article.
I also thank the members of the Merck Settlement Group for their willingness to share their insights on both their group and the Vioxx settlement with me.
Despite reports circulating as early as 2004 about problems with the Sprint Fidelis cable, Medtronic's medical device is still in widespread use. Barry Meier of the New York Times reports that along with roughly 13 fatalities, the FDA has received reports of 2,200 reports of serious injuries. Here's an excerpt of the article:
Separately, a previously undisclosed Food and Drug Administration report indicates that Medtronic began receiving reports soon after the device reached the market in late 2004 that the cable, known as the Sprint Fidelis, was fracturing. The company also revised its manufacturing process in the months before withdrawing the Sprint Fidelis from the market, according to the F.D.A. report, which was provided to The New York Times by lawyers suing Medtronic.
A top Medtronic official said in an interview on Friday that the manufacturing change in question was unrelated to the reasons for the recall and that even at the time of the recall internal data did not suggest it was fracturing at a significantly higher rate than other company leads.
When Medtronic may have known the Sprint Fidelis posed safety problems, and how it responded to that information, could be significant factors if patient lawsuits over the product were to start moving forward again. This month, top Democratic lawmakers introduced legislation that would effectively nullify a Supreme Court decision last year that has blocked lawsuits against medical device makers like Medtronic. The company recently said that about 2,000 legal claims involving the Sprint Fidelis had been filed against it.
The death statistics Medtronic released Friday underscore both the scope of the Sprint Fidelis problem and the difficult choices that doctors and patients face in deciding what to do about it. About 150,000 people in this country still have the Sprint Fidelis leads in their bodies.
Thursday, March 12, 2009
Professor Richard Nagareda (Vanderbilt) has published The Law of Class Actions and Other Aggregate Litigation (Foundation Press 2009). Here's the book description from Foundation Press:
Nagareda’s new casebook is the first to situate as a cohesive whole the ways in which U.S. law seeks to resolve related civil claims on an aggregate basis, integrating the study of class actions with emerging devices such as aggregate settlements, arbitration, and reorganizations in bankruptcy.
This book fills three gaps in the market for teaching materials on the U.S. civil justice system. First, the casebook establishes “aggregate litigation” as a cohesive field of procedural law, one that encompasses not only class actions but also related devices such as aggregate settlements, reorganizations in bankruptcy, private arbitration, and aspects of litigation by the government. Second, the casebook confronts forthrightly the reality of our civil justice system as one geared toward settlement, not the rare event of trial. From this vantage point, the casebook sees the processes for aggregate litigation as vehicles through which the law seeks to achieve proper preclusion – that is, comprehensive, or broadly encompassing, resolution of related civil claims. The hard questions surrounding aggregate litigation concern how the law may legitimize this binding effect. Third, the casebook frames the binding effect sought for settlements in aggregate litigation as drawing upon aspects of both private contracts and public legislation. In so doing, the framework of the casebook encourages students to see cross-cutting connections to their other courses on such topics as contracts, corporations, and administrative law.
Wednesday, March 11, 2009
DePaul University College of Law is hosting the 15th Annual Clifford Symposium on Tort Law and Social Policy. This year's topic is Rising Stars: A New Generation of Scholars Looks at Civil Justice. The symposium will take place on Thursday, April 2, 2009 and Friday April 3, 2009. Speakers include: Professors Shari Diamond (Northwestern), Eric Feldman (Penn), Marc Galanter (Stanford), Myriam Giles (Cardozo), Michele Goodwin (Minnesota), Daniel Ho (Stanford), Stephan Landsman (DePaul), Richard Lempert (Michigan), David Marcus (Arizona), Daniel Markovits (Yale), Robert Rabin (Stanford), Jennifer Robbennolt (Illinois), Margo Schlanger (Washinton Univ.), Anthony Sebok (Cardozo), Neil Siegel (Duke), Jed Shugerman (Harvard), Benjamin Spencer (Washington & Lee), Catherine Struve (Penn), Suja Thomas (Illinois), Katerina Wyman (NYU), Albert Yoon (Toronto), and Kathryn Zeiler (Georgetown).
The Federalist Society is hosting a panel on the new book, Regulation by Litigation (Yale Univ. Press 2008), co-authored by Professor Andrew Morriss (Illinois), Professor Bruce Yandle (Clemson, Economics Dep't), and Andrew Dorchak (Case Western, Law Library). The event will be held on Tuesday, March 17, 2009 at the Mayflower Hotel in Washington, D.C. Panel members will include the book's authors, as well as Professor David Vladeck (Georgetown) and Roger Martella (Sidley Austin), and the moderator will be Jonathan Adler (Case Western). Here's the description of the book:
Federal and state regulatory agencies are increasingly making use of litigation as a means of regulation. In this book, three experts in regulatory law and theory offer a systematic analysis of the use of litigation to impose substantive regulatory measures, including a public choice-based analysis of why agencies choose to litigate in some circumstances.
The book examines three major cases in which litigation was used to achieve regulatory ends: the EPA’s suit against heavy duty diesel engine manufacturers; asbestos and silica dust litigation by private attorneys; and private and state lawsuits against cigarette manufacturers. The authors argue that litigation is an inappropriate means for establishing substantive regulatory provisions, and they conclude by suggesting a variety of reforms to help curb today’s growing reliance on such practice.
Monday, March 9, 2009
Dean Robert Klonoff (Lewis & Clark), Mark Herrmann (Jones Day), and Bradley Harrison (Jones Day) have published Making Class Actions Work: The Untapped Potential of the Internet, 69 U. Pitt. L. Rev. 727 (2008).
Sunday, March 8, 2009
The Economist has an article, Model Behaviour, about the use of increasingly sophisticated computer technology to model the interaction of large numbers of individuals. While the technology has been used for graphics in movies like Lord of the Rings, it's also being used to predict complex behaviors such as the way people react in public when someone collapses; other uses include the movements of people during a fire and ships in a crowded harbor.
Can't help wondering whether such computer modeling might someday help mass tort attorneys predict the litigation movements of masses of plaintiffs: how many will sign up for representation? based on what stimuli? how many will want to press to trial rather than settle? how will thousands of claimants react to a proposed group or class settlement? how many will see class notice? how many will opt out of class actions altogether? Seems like a model could be created based on a database of past interactions of mass tort plaintiffs in similar situations. And I'm sure defense counsel would enjoy thinking of themselves as fighting against the hordes of plaintiff orcs coming over the mountains.