Wednesday, January 26, 2011
Shay Lavie (SJD Candidate, Harvard) has posted an article entitled Reverse Sampling: Holding Lotteries to Allocate the Proceeds of Small-Claims Class Actions on SSRN. Not exactly about mass torts but related to my long time interest in sampling and case management in class actions. On the face of it I can't imagine a court going with this, but it relates to the same set of considerations that have propelled cy pres funds and fluid recovery (or attempts at fluid recovery) and so the analysis is important.
Small-claims class actions pose a unique dilemma: individual awards are small, and it is often not feasible to distribute them to each and every plaintiff. Courts have devised several alternative allocation procedures to cope with this problem, but none is satisfactory.
This Article proposes a different method: paying more money to fewer, randomly sampled, claimants. As each individual award entails per-claim administrative costs, using lotteries to distribute the proceeds of small-claims class actions cuts these expenses. The Article demonstrates that this method is superior to all existing alternatives. It funnels the money back to the group of victims, achieves deterrence, and maintains administrative efficiency. Finally, the Article shows that randomization is a fair allocation mechanism as all class members are equally treated, and that the use of lotteries in this context raises no legitimacy concerns.
Tuesday, January 25, 2011
Here is what Robin Effron at the Civil Procedure & Federal Courts Blog has to say about it:
The Fifth Circuit rejected the $21 million settlement of a class action over damage caused by the levee breaches on the grounds that it did not grapple with the fairness of dispersal of funds and instead "punted" that job to the special master.
Here is a link to the opinion. ADL
Monday, January 24, 2011
Judge Amon in the Eastern District of New York last week dismissed plaintiffs' medical monitoring claim in a proposed tobacco class action. Caronia v. Philip Morris USA, Inc., No. 06-CV-224 (E.D.N.Y. Jan. 13, 2011). Here's the decision.
Sunday, January 23, 2011
Interesting article from the New York Times on services that offer loans to litigants and the high interest rates typically charged: Lawsuit Loans Add New Risk for the Injured, by Binyamin Appelbaum. The article discusses the movement to subject such loans, and their high interest rates, to regulation. Of course, if the interest rates able to be charged are limited by state law, the effect may be to destroy the lawsuit loan market, because the default risk for such loans may be high enough that only a high-interest rate lending model may be profitable over the long term. Losing such loans would be unfortunate, because litigants with meritorious cases may need access to funds while the the justice system processes the case. Instead of regulatory capping of interest rates, why not instead rely on clear disclosure of rates in contracts, and market forces of vying lenders competing over interest rates?
Friday, January 21, 2011
Melanie Goff and Richard Bales (both of Northern Kentucky) have posted to SSRN their article, A 'Plausible' Defense: Applying Twombly and Iqbal to Affirmative Defenses, which is forthcoming in the American Journal of Trial Advocacy, Vol. 34, No. 3, 2011. Here's the abstract:
The U.S. Supreme Court’s 2007 and 2009 decisions in Twombly and Iqbal radically altered the environment in which federal complaints are filed by creating a “plausibility” requirement where the Federal Rules before required only a “short and plain statement” providing “notice” of a claim. The lower federal courts have just now begun to deal with the Twombly-Iqbal fallout. One of the issues that has arisen – the issue addressed by this article – is whether the new plausibility pleading standard applies only to plaintiffs’ complaints, or whether it applies also to affirmative defenses raised in defendants’ answers. This article argues that, regardless of whether the Twombly-Iqbal departure from notice pleading was wise, the new standard should be applied uniformly to all pleadings, because to do otherwise would even further uniquely and unfairly disadvantage plaintiffs.
Theodore Eisenberg and Michael Heise (both of Cornell) have posted to SSRN their article, Judge-Jury Difference in Punitive Damages Awards: Who Listens to the Supreme Court? Here's the abstract:
We analyze thousands of trials from a substantial fraction of the nation’s most populous counties as well as a smaller sample of less populous counties. Evidence from four major Civil Justice Survey data sets spanning more than a decade establishes that: (1) compensatory awards are strongly associated with punitive awards and (2) the punitive-compensatory relation has not materially changed over time. But (3) 2005 data suggest, for the first time, systematic differences between judges and juries in the punitive-compensatory relation. Despite claims that the Supreme Court’s State Farm decision changed the punitive-compensatory relation, we present evidence that the 2005 shift is not attributable to the State Farm case or to other possibly relevant likely factors such as the relative flow of personal injury cases to judges and juries, inclusion of 110 small counties in the 2005 data, or changes in the 2005 data coding. The judge-jury difference more likely turns on unobserved factors driving the selection of cases for adjudication before judges and jurors.
Thursday, January 20, 2011
Lester Brickman (Cardozo) has posted to SSRN his article, Unmasking the Powerful Force that Has Mis-Shaped the American Civil Justice System, which appears in the Global Competition Law Review, Vol. 4, No. 3, 2010. Here's the abstract:
The contingency fee, once largely a uniquely American institution, is beginning to gain serious consideration in Europe and elsewhere. It is essential that those considering adopting some form of the contingency fee to finance civil litigation have a proper understanding of the impact of the contingency fee on the U.S. civil justice system. That understanding, however, appears woefully lacking. In Lawyer Barons: What Their Contingency Fees Really Cost America (Cambridge University Press 2011), I discuss the underappreciated and indeed, often unrealized costs of reliance on contingency fees to finance access to the tort system. In this essay, I reprise some of the impacts policymakers should take into account in determining whether the anticipated benefits of the American contingency fee system outweigh the considerable costs.
West is publishing a new casebook, Toxic and Environmental Torts: Cases and Materials, by Robin K. Craig (Florida State), Michael D. Green (Wake Forest), Andrew Klein (Indiana-Indianapolis), and Joseph Sanders (Houston).
I'm organizing a conference with the University of Connecticut Insurance Law Center called "Actuarial Litigation: How Statistics Can Help Resolve Big Cases" to be held on Friday, April 15, 2011 at UConn.
The participants are an amazing group and there should be a lot of chances for synergy between experts in statistics, experts in law and everyone in between. Here is the list:
Kenneth R. Feinberg, Feinberg Rozen LLP - who needs no introduction
Robert G. Bone, University of TexasLaw School
Edward K. Cheng, Vanderbilt Law School
Howard Erichson, Fordham Law School
James Grenier, Harvard Law School
Deborah Hensler, Stanford Law School
Samuel Issacharoff, New York University Law School
Joseph B. Kadane, Carnegie Mellon University, Department of Statistics
Francis McGovern, Duke Law School
Adam Scales, Washington & Lee School of Law
Alex Stein, Benjamin N. Cardozo School of Law
Wednesday, January 19, 2011
Monday, January 17, 2011
I hope are readers are having a good MLK day and that your employer gave you the day off in observance!
Benyamin Applebaum of the NY Times has an article on litigation funding in torts - the first story there is of a Vioxx plaintiff. See the article here.
For a very insightful take on litigation funding, in particular arguing that it is a good way to disgorge the appropriate amount from the defendant rather than permitting the defendant to get a discount because of plaintiffs economic situation, see Steven Gillers post at the Legal Ethics forum here.
Readers interested in this topic might also want to take a look at Maya Steinitz, Whose Claim is this Anyway? Third Part Litigation Funding, available on SSRN.
Thursday, January 13, 2011
Southwestern Law School, in collaboration with the University of British Columbia (UBC) Law Faculty and the International Centre for Criminal Law Reform and Criminal Justice Policy, will host a four-week Summer Law Program in Vancouver, British Columbia, Canada, from May 29 to June 29, 2011. In its 19th year, the program draws upon the collegial relationship between UBC and Southwestern, and offers a variety of academic and social experiences through (1) courses taught by prominent U.S. and Canadian law professors; (2) Distinguished Guest Lecturer, the Honorable Justice Rosalie Silberman Abella of the Supreme Court of Canada; (3) Midday Lecture Series presented by leading international scholars; (4) a part-time externship program; and (5) field excursions to local courts and other legal agencies. Here is the brochure.
I look forward to teaching a course on Global Tort Litigation in the Vancouver program this summer. Here's the course description:
This course will examine tort and civil procedure issues arising in global tort litigation, with particular focus on mass tort litigation spanning multiple countries. Subjects will include comparative approaches to liability for defective products, responses to terrorism, governmental liability, class actions, attorneys’ fees, and civil litigation generally. The course will also discuss crisis management. Particular attention will be given to litigation pertaining to the 9/11 terrorist attacks, BP Gulf oil spill, Toyota automobile unintended acceleration, Agent Orange defoliant, Vioxx drug, Dalkon Shield intrauterine device, and DBCP pesticide.
Other professors teaching in the Vancouver summer program include Linda Carter (McGeorge), Bruce MacDougall (UBC), Caleb Mason (Southwestern), and Hari Osofsky (Minnesota). Professors Gowri Ramachandran and Caleb Mason (both of Southwestern) are co-directors of the program.
Wednesday, January 12, 2011
Congratulations to our co-blogger Alexandra Lahav of the University of Connecticut School of Law for being awarded the Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility for her article, Portraits of Resistance: Lawyer Responses to Unjust Proceedings, which is forthcoming in the UCLA Law Review! The award was announced at the recent meeting of the professional responsibility section at the AALS conference.
U.S. Supreme Court Grants Cert. in Halliburton Securities Class Action Case Involving Statements on Asbestos Liabilities
More on the case from the Reuters article, Supreme Court to Hear Halliburton Securities Case, by James Vicini, as well as from SCOTUSblog. Yes, it's a securities case and so not our usual focus in mass torts, but it will be interesting to see if the Court comments on class actions or asbestos-related litigation generally.
Tuesday, January 11, 2011
On Saturday, February, 26, 2011, the Southwestern Journal of International Law is hosting a symposium entitled, 2021: International Law Ten Years From Now, at Southwestern Law School in Los Angeles. The symposium is being presented in conjunction with International Law Weekend-West of the International Law Association (American Branch). Panels will address topics including international litigation, international human rights, international environmental law/climate change, international dispute resolution law, and international legal profession. The keynote speaker will be Michael Traynor, President Emeritus and Council Chair of the American Law Institute, and Co-Chair of the ABA Commission on Ethics 20/20. Here's the brochure.