November 18, 2009
So What Should the Law Do About Jury Variability?
In my previous post pointing readers to Tim Lytton's thought provoking post on TortsProfBlog, I neglected to mention our own Byron Stier's work on the same issue. Interested readers might look to his piece, Jackpot Justice available on SSRN. Here is the abstract:
Mass tort scholars, practitioners, and judges struggle with determining the most efficient approach to adjudicate sometimes tens of thousands of cases. Favoring class actions, mass tort scholars and judges have assumed that litigating any issue once is best. But while litigating any one issue could conceivably save attorneys' fees and court resources, a single adjudication of thousands of mass tort claims is unlikely to further tort goals of corrective justice, efficiency, or compensation in a reliable way. That is because, as recent empirical research on jury behavior shows, any one jury's verdict may be an outlier on a potential bell curve of responses applying the law to the facts before it. Indeed, one aberrational, high jury claim valuation, if extrapolated to thousands of claims through a class action, may inappropriately bankrupt an entire industry. Similarly, one unusually low jury verdict might deny legions of plaintiffs the compensation that they deserve. To illustrate the problems of attempting to resolve a mass tort with a single jury, this Article discusses the Engle tobacco class action of Florida smokers, where the application of a single jury verdict to approximately 700,000 smokers appears to be an outlier verdict in light of prior juries' verdicts in Florida tobacco cases. In contrast, this Article argues that the use of multiple juries in individual cases is a superior method of resolving a mass tort. While the use of multiple juries in class actions to create statistically cobbled claim values has been rejected as violating due process and state tort law, no such problems accompany the approach espoused here: that individual-plaintiff lawsuits, each with its own jury, be tried and that the jury verdicts be used by mass tort litigants to develop claim values for broad mass tort settlement. In addition to remaining within the strictures of constitutional and tort law, this clustering of multiple juries around an accurate valuation of mass tort claims and the resulting likely settlement furthers both the procedural goal of litigant autonomy and the tort aims of efficiency, corrective justice, and compensation.
One question I ask in my work in progress is what makes a process that uses other people's jury verdicts as a predictor of your own award fair? Is this an evolving view of what fairness is in litigation?
November 17, 2009
On the So-Called "Litigation Lottery" in Torts
Tim Lytton has a very interesting post up on Torts Prof Blog about the tort system and the accusations of a litigation lottery. Here is the link.
I am very interested in Lytton's critique. I think he is right that tort verdicts are not random like a lottery is. There are extreme cases, but they are pretty universally recognized as extreme and there are plenty of procedural mechanisms for controlling these rare, extraordinary awards through remittiturs, appeals, etc. Lytton is also right that there are no ways that I know of for controlling for the opposite -- people that don't file cases although they have meritorious cases or people who recieve compensation that is too low. (At least in most states and the federal courts because additur is the exception rather than the rule).
So overall I agree that calling the tort system a "lottery" is hyperbole that is counterproductive. But I am not sure about one thing: that cases can be "accurately" priced such that we can say that an outcome is erroneous in some objective way. Here I am not talking about liability, but rather case valuation, often the target of tort reformers.
I am currently working on an essay in which I argue that the valuation of tort cases is culturally based, contextual and therefore must be done comparitively. That is, a case is accurately valued when it is valued at an amount comparable to other cases. This should not be a one way ratchet (only bringing case values downwards rather than up). People concerned that case values are too high should look at the statistics - they are often surprisingly low compared to what media reports would indicate. See this post on state tort statistics for a flavor.
I hope to be able to post my essay on SSRN soon; interested readers can contact me directly.
November 16, 2009
Around the Web
Dan Levine, Pair of Plaintiffs Lawyers May Face Different Fates in 9th Circuit Disciplinary Action, The Recorder (discussing disciplinary action in Nicaraguan pesticides case).
Francis E. McGovern (Duke), The Second Generation of Dispute System Design: Reoccurring Problems and Potential Solutions, Ohio St. J. Disp. Resol. (2008) (posted on SSRN).
William H. Simon (Stanford & Columbia), Moral Freaks: Lawyers’ Ethics in Academic Perspective, Geo. J. Lgl. Ethics (forthcoming) (posted on SSRN).
Keith N. Hylton (Boston Univ.) & Haizhen Lin (Indiana), Trial Selection Theory and Evidence: A Review (posted on SSRN).
Neil Vidmar (Duke) & Mirya R. Holman (Duke), The Frequency, Predictability and Proportionality of Punitive Damages in State Courts (posted to SSRN).
Patrick M. Connors (Albany), Which Party Pays the Costs of Document Disclosure?, Pace L. Rev. (2009) (posted to SSRN).
Embedded Aggregation in Civil Litigation
Richard Nagareda has just posted "Embedded Aggregation in Civil Litigation" on SSRN. I saw him present this piece at NYU and it is worth reading. I always enjoy Nagareda's work and this is no exception. The Article does a good job of explaining the emergence of this idea of the "quasi" class action. As a rule of thumb, whenever one sees a doctrine with a "quasi" in front of it, legal categories are in the process of breaking down. Here is the abstract:
When one hears the term “aggregation” in civil litigation, the context that comes to mind involves the long-running debate over class actions. Viewed within its own terms, that debate tends to convey the impression that the world neatly divides itself into the mass effects somehow unique to class actions and the confined realm of one-on-one litigation. In the midst of this debate, a closely related set of issues has gone curiously underexplored. Here, the concern is not over some deviation from the one-on-one lawsuit. Rather, the basic suggestion is to circumscribe what an ostensible individual action may do in order to prevent that lawsuit from exerting some manner of binding force upon nonparties who are broadly similar to the parties involved. The idea, in other words, is to constrain what individual litigation may do, precisely because it is not a “de facto class action” empowered to act upon nonparties. Variations of this concern have emerged across what might seem an unrelated array of contexts: the Supreme Court’s 2008 decision in Taylor v. Sturgell, rejecting the procedural doctrine of “virtual representation”; the Court’s 2007 decision in Philip Morris USA v. Williams, regarding the constitutional due-process limits on punitive damages; and the multibillion-dollar deal reached in 2007 to resolve mass tort litigation over the prescription pain reliever Vioxx. This Article explains that there is something deeper going on here but that its nature and implications remain undertheorized. Each instance involves a more general phenomenon, what this Article delineates as “embedded aggregation.” In each, a doctrinal feature of what is ostensibly individual litigation – the scope of the right of action asserted, the nature of the remedy sought, or the character of the wrong alleged – gives rise to demands for the suit to bind nonparties in some fashion, beyond the ordinary stare decisis effect that any case might exert. Ironically, the features of Taylor, Williams, and the Vioxx litigation that make them situations of embedded aggregation also, in all likelihood, would defeat efforts to aggregate them overtly as class actions. The result is to leave the law today in a kind of procedural Catch-22, whereby embedded aggregation seemingly invites class-action treatment, but such treatment is unavailable due to the very features that make the situation one of embedded aggregation. This Article frames an emerging prescription for situations of embedded aggregation in a world in which the modern class action does not, and will not, realistically shoulder the entire regulatory load. The way out of the procedural Catch-22 in which the law finds itself consists of “hybridization” – the combination of individual actions with some manner of centralizing mechanism, just not always the unity of litigation generated by the class action device. Moving outside the parameters of the class action means shifting into new settings a similar need for a centralizing mechanism and, crucially, for legal regulation of the manner in which it may exercise coercive power. In so doing, this Article seeks to break down the prevalent supposition of a neat division between the perceived need for legal regulation of class actions and the supposedly benighted world of autonomous individual lawsuits. The time has come to move the conversation about aggregate procedure beyond the class action device – to broaden the menu of approaches available for our modern world of mass civil claims. Such an approach actually would remain more true to the historical emergence of the class action device over time than a prescription for either a vast expansion of that device or reflexive individualization in all situations of embedded aggregation. In addition, hybridization accords better with the emerging transnational conversation about the design of aggregate litigation procedures.