March 2, 2010
Rough Justice and the Problem of Value in Tort Law
Following on Prof. Erichson's footsteps, I have just posted a draft article entitled "Rough Justice and the Problem of Value in Tort Law." You can find it on SSRN and bepress.
This article can be read in dialogue with Erichson and Zipursky's argument against lawyer empowerment in the mass tort context (see their article "Consent versus Closure" described in the post below). Their baseline is the individual case which ostensibly is run by the litigant as compared to the mass tort context in which lawyers are empowered to determine outcomes. I demonstrate that in the individual case lawyers are setting the price of settlement with reference to other cases without rigorous methodology, leading to inequity. In the mass tort context, we have the possibility to adopt transparent, rigorous methods that ensure horizontal equity, a central principle of procedural justice.
This article is also a response to concerns about variability in jury verdicts. I have blogged about these issues here and here and refer readers to Tim Lytton's post on Tort Profs Blog and Byron Stier's work on "Jackpot Justice." We have very different views on what variability in tort verdicts really means!
Below is the abstract of my piece. If you read the draft and have comments, please send them along.
This Essay argues the counterintuitive position that in our tort system, individual justice is rougher than justice on a mass scale. The reason for this is that mass tort cases can be resolved collectively using rigorous transparent social science methods that can ensure equal treatment of similarly situated litigants. Individual justice, by contrast, allows cases to be resolved in a largely hidden system of comparative valuation using loose methods that are unlikely to result in like cases being treated alike. To do justice courts must use rigorous, transparent methods of case valuation.
In addition to this key insight, this Essay makes two contributions. First, it demonstrates a pragmatic way of thinking about procedural justice by measuring existing procedures against widely recognized principles. In this case, I compare sampling procedures with principles of equality, fairness and distributive justice. Second, it uncovers a pernicious assumption that has been heretofore ignored by scholars: contrary to popular belief, there is no objective way to monetize injuries. All justice in tort cases is rough justice. This is the problem of value in tort law. The solution to this problem is properly administered sampling procedures.
March 1, 2010
Erichson & Zipursky on mass settlements
Benjamin Zipursky and I have completed a paper entitled "Consent versus Closure." Ben is one of the nation's leading experts on torts and legal theory. He and I have long shared an interest in mass tort litigation, and we share certain concerns about the direction mass tort settlements seem to be heading. In particular, we were both troubled by the mandatory withdrawal provision of the Vioxx settlement, and we both opposed the American Law Institute's proposal to permit advance consent to aggregate settlements. More generally, we see the Vioxx deal and the ALI proposal as part of a troubling broader trend, in both practice and scholarship, toward embracing the pursuit of absolute closure by empowering plaintiffs' lawyers to deliver their clients' claims in settlement. Here's the abstract:
Claimants, defendants, courts, and counsel are understandably frustrated by the difficulty of resolving mass tort cases. Defendants demand closure, but class certification has proved elusive and non-class settlements require individual consent. Lawyers and scholars have been drawn to strategies that solve the problem by empowering plaintiffs’ counsel to negotiate package deals that effectively sidestep individual consent. In the massive Vioxx settlement, the parties achieved closure by including terms that made it unrealistic for any claimant to decline. The American Law Institute’s Principles of the Law of Aggregate Litigation offers another path to closure: it proposes to permit clients to consent in advance to be bound by a settlement with a supermajority vote. This article argues that, despite their appeal, both of these strategies must be rejected. Lawyer empowerment strategies render settlements illegitimate when they rely on inauthentic consent or place lawyers in the untenable position of allocating funds among bound clients. Consent, not closure, is the touchstone of legitimacy in mass tort settlements.
"Consent versus Closure" critiques mandatory withdrawal, looking at specific legal ethics rules and doctrines as well as the more basic problem of inauthentic consent. It critiques the ALI's advance consent proposal based not only on the problem of inauthentic consent, but also the problem of nonconsentable conflicts, exploring what it means for claimants to own their claims and for lawyers to represent clients in pursuing those claims.
This article picks up on the theme of "The Trouble with All-or-Nothing Settlements," in which I used six case studies to show various problems caused by demands for fully comprehensive settlements outside of class actions and bankruptcy.