Thursday, March 10, 2011
Patrick Luff (Oxford) has posted Risk Regulation and Regulatory Litigation on SSRN. Here is the abstract:
Since at least the 1960s, when Congress enacted civil rights statutes that provided for private enforcement, courts have been hotbeds of public policy. Only recently, however, has this phenomenon been recognized for what it is: courts have become essential actors in the regulatory state. What little scholarship there is on the use of courts to achieve regulatory ends is often heavy on rhetoric, but short on theory. While commentators have been quick to criticize the phenomenon of regulatory litigation, they have done little to determine what it actually is. As a result, the young field of regulatory litigation lacks fundamental theoretical discussions necessary for the fruitful development of the field. This article fills the gaps in the theoretical literature in three ways. First, this article presents the theory that regulatory litigation has developed to address the gaps between socially demanded levels of risk regulation and the amount of risk protection actually provided by the state. Second, this article collects and analyzes the scholarship to date that attempts to find the line that divides regulatory from non-regulatory litigation, and explains how and why previous definitions of regulatory litigation have fallen short. Finally, this article presents a theoretical discussion of the nature of regulatory litigation that distinguishes between top-down regulation through statutory promulgation and bottom-up regulation that occurs through the remedial choices made by litigants and judges.
I've just posted a book review of Martin Redish's book Wholesale Justice: Constitutional Democracy and the Problem of the Class Action Lawsuit (Stanford U. Press 2009) to SSRN.
Here is a link to the review, entitled Are Class Actions Unconstitutional?
In Wholesale Justice, Martin Redish argues that class actions are unconstitutional and must be significantly reformed. The argument he presents is one that will surely be debated in courtrooms as well as classrooms and is especially significant given that the Supreme Court is hearing four major class action cases in the October 2010 term. After summarizing Redish's arguments, the review demonstrates that class actions are both constitutional and consistent with ideals of democratic accountability. In the end, the question is not whether the class action is constitutional (it is) but whether class actions are socially beneficial. This is a policy issue, not a constitutional one. Nevertheless, a broader point in Redish's book deserves serious attention. Too often procedures and remedies stealthily prevent the vindication of substantive rights. The appropriate solution to this accountability problem is a more robust public discussion of the relationship between rights and remedies.
Tuesday, March 8, 2011
Sergio Campos (Miami) sent me the link to the following debate on the University of Pennsylvania Law Review's internet companion Pennumbra (cute eh? the italics are in the original)
The short piece is called "The Future of Mass Torts - and How to Stop It" - its a defense of the deterrence rationale for limiting individual control of cases in mass tort situations. Our own Howard Erichson is scheduled to respond. Enjoy!