September 18, 2009
The FDA recently sent a warning letter to Bayer, which manufacturers Yaz and Yasmin (both types of birth control pills), that it has quality control problems at its German plant. The FDA claims that Bayer's testing method averaged out the test results as opposed to reporting results for each batch. Bayer had the batches shipped to the U.S. between 2007 and 2009.
This news is simply the most recent concern about Yaz. Litigation is already pending in Pennsylvania in front of Judge Sandra Mazer Moss of the Philadelphia Court of Common Pleas, alleging that the drug causes severe side effects including blood clots, strokes, heart attacks, gallbladder disease, deep vein thrombosis, pulmonary embolisms and even sudden death. There has been some speculation around the internet that the FDA will recall the drug. As the U.S. Recall News reports:
"In July 24, 2009, a petition was filed to consolidate the many lawsuits against Bayer over Yaz and Yasmin into a multidistrict litigation (MDL). There is a hearing scheduled for September 24, 2009 to decide whether or not they will be consolidated."
"Andrew Gillin, an attorney handling several California Yaz lawsuits says the litigation is still in the early stages. “A petition has been filed to combine all of the federal lawsuits into a multi-district litigation (MDL) case. Later this month, a panel of federal judges will determine whether the cases involve sufficiently common questions of fact, and whether or not to consolidate,” explained Mr. Gillin."
September 17, 2009
Kansas Law Review - Aggregate Justice: Perspectives Ten Years After Amchem and Ortiz
Kansas Law Review's symposium this year is titled "Aggregate Justice: Perspectives Ten Years After Amchem." Here's the official blurb and the line-up of speakers:
Friday October 30, 2009
Green Hall, 1535 W. 15th Street, Lawrence, Kansas 66045
We are excited to announce this year’s Kansas Law Review Symposium, which will focus on the present and future of aggregate litigation, using Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999), as a springboard for this exploration. The Symposium will feature a number of well-known speakers in the field of aggregate litigation. The event will be held on October 30, 2009, at the University of Kansas School of Law in Lawrence, KS.
Speakers and their affiliations:
- Elizabeth Chamblee Burch (J.D., Florida State University College of Law) is an Assistant Professor of Law at the Florida State University College of Law.
- Howard M. Erichson (J.D., New York University School of Law) is a Professor of Law at the Fordham University School of Law.
- Steven S. Gensler (J.D., University of Illinois, Urbana-Champaign) is the Welcome D. and W. DeVier Pierson Professor of Law at the University of Oklahoma College of Law.
- Laura J. Hines (J.D., University of Michigan) is a Professor of Law at the University of Kansas School of Law.
- Linda S. Mullenix (Ph.D., Columbia University, J.D., Georgetown University Law Center) holds the Rita and Morris Atlas Chair in Advocacy at the University of Texas School of Law.
- Tom Willging (L.L.M., Harvard Law School, J.D., The Catholic University of America, Columbus School of Law) is a senior researcher at the Federal Judicial Center.
- Patrick Woolley (J.D., Yale Law School) is the Beck, Redden & Secrest Professor at the University of Texas School of Law.
Attendance is free and no reservations are required.
For more information, please contact Symposium Editor Shane McCall: firstname.lastname@example.org.
Although my paper is still in its formative stages, its title is "Aggregation, Community, and the Line Between." It builds on my earlier work, "Litigating Groups," and my current work-in-progress, "Litigating Together: Social, Moral, and Legal Obligations," which I'll present at the University of Florida next week. The Kansas article examines our current line drawing scheme, which essentially asks whether the procedurally aggregated individuals form a sufficiently cohesive group before the decision to sue. Here's a short overview/abstract:
This Article non-rhetorically asks whether this is the right dividing line. Although I rely principally on analogies to the class action context, I am particularly concerned about mass tort litigation that proceeds as nonclass aggregation because it fails the predominance test in Rule 23(b)(3). Cohesion, as currently measured by courts is static in that the proxies—requesting uniform relief and having common characteristics that pre-date the litigation—are measured at a particular point in time. And plaintiffs with procedurally aggregated tort claims are unlikely to exhibit the fundamental attributes of a cohesive local community—social bonds, social activities, and community attachment. But what if, by using new communication mediums, we could return to the core cohesion seen in small, rural medieval communities without the corresponding geographic restrictions? Put differently, what if, in drawing the line for cohesive groups, we traced actual cohesion regardless of when it arose? This Article explores that question.
September 16, 2009
"I'll let you write the substance . . . and you let me write the procedure, and I'll screw you every time."
Rep. John Dingell, Hearings on H.R. 2327 Before the Subcomm. on Admin. Law and Governmental Relations of the House Comm. on the Judiciary, 98 Cong., 1st Sess. 312 (1983).
Regulation and the "Big Case"
Frederick Schauer and Richard Zeckhauser have posted "The Trouble With Cases" on SSRN. This article makes an interesting argument about the dearth of rigorous empirical basis for regulation - by litigation and by legislation as well. CAFA is a wonderful example of the problem they point to. Here is the abstract:
For several decades now a debate has raged about policy-making by litigation. Spurred by the way in which tobacco, environmental, and other litigation has functioned as an alternative form of regulation, the debate is about whether policy-making or regulation by litigation is more or less socially desirable than more traditional policy-making by ex ante rule-making by legislatures or administrative agencies. In this paper we enter the debate, but not to come down on one side or another, all things considered, of the litigation versus ex ante rule-making regulatory debate. Rather, we seek to show that any form of regulation that is dominated by high-salience particular cases is highly likely, because of the availability heuristic and related problems of representativeness, to make necessarily general policy on the basis of unwarranted assumptions about the typicality of one or a few high-salience cases or events. And although this problem is virtually inevitable in regulation by litigation, it is far from absent even in ex ante rule-making, because such rule-making increasingly takes place in the wake of, and dominated by, particularly notorious and often unrepresentative outlier events. In weighing the value of regulation by ex ante rule-making against the value of regulation by litigation, it is important for society to recognize that any regulatory form is less effective just insofar as it is unable to transcend the distorting effect of high-salience unrepresentative examples.
The Case Against Products Liability
Law and Economics scholars Steven Shavell and A. Mitchell Polinsky have posted "The Uneasy Case for Products Liability" on SSRN. Here is the abstract:
We explain in this Article that the benefits of product liability may well be outweighed by its costs in a wide range of circumstances. One benefit is that the threat of liability may induce firms to improve product safety. However, this benefit is limited: even in the absence of product liability, firms would often be motivated by market forces to enhance product safety because their sales are likely to fall if their products harm consumers; moreover, their products must frequently conform to safety regulations. Consequently, product liability might not be expected to exert a significant additional influence on product safety — and the available empirical evidence suggests that such liability does not in fact have a measurable effect on the frequency of product accidents. A second benefit of product liability is that it causes product prices to increase to reflect the riskiness of products and thereby may improve consumer purchase decisions. But this benefit also involves a detriment, because product prices may rise excessively and undesirably chill purchases. A third benefit of product liability is that it compensates victims of product-related accidents for their losses. Yet this benefit is only partial, for accident victims are already often compensated by their insurers for some or all of their losses. Potentially offsetting the benefits of product liability are its costs, which are great. To transfer a dollar to a victim of a product accident requires more than a dollar on average in legal expenses. Given the limited benefits and the high costs of product liability, we conclude that it may be socially undesirable — especially for widely sold products, with respect to which market forces and regulation are relatively strong. This judgment is in tension both with the broad social endorsement of product liability and with proposals for its reform, which generally do not question its existence. Our more critical assessment of product liability stems from the fact that we engage in an analysis of its benefits and costs, whereas neither the proponents of product liability nor its reformers undertake to do so.
A cost benefit analysis that takes account of the costs of litigation as a social cost is useful. I guess we need to compare the social costs of litigation with the social costs of administrative regulation and "market" regulation in order to determine which is the most efficient mode of regulation. Looks like an interesting piece.