January 12, 2012
Mark Hermann on Class Actions on Above the Law
Hermann asks why class action defense lawyers aren't bringing up Redish's arguments more in courtrooms across the nation. More thoughts on this later...in the meantime, I recommend his post.
January 04, 2012
New Treatises on Drug and Device Litigation
The first is Mark Herrmann & David B. Alden, Drug And Device Product Liability Litigation Strategy (Oxford 2012).
The other is James M. Beck & Anthony Vale, Drug and Medical Device Product Liability Deskbook (Law Journal Press 2011)
Here's a post by Mark Herrmann reviewing both books. These promise to be very useful treatises.
September 03, 2011
Book on Vioxx by Snigdha Prakash
Snigdha Prakash has written an interesting book on the Vioxx litigation, "All the Justice Money Can Buy: Corporate Greed on Trial." The book follows the early course of the Vioxx litigation and then turns its attention to the Humeston/Hermans trial, during which Prakash was embedded with Mark Lanier and his trial team. Dramatic and well-written, and not shy about taking sides, the book is a great read and offers a rare inside look at the functioning of a trial team and the tensions that can arise among plaintiffs' lawyers in mass tort litigation.
March 29, 2010
Panel on Pluralism in Tort Law and Litigation at Annual Conference of the Association for the Study of Law, Culture and the Humanities
As previously mentioned, I was part of a panel on Pluralism in Tort Law and Litigation at the annual conference of the Association for the Study of Law, Culture and the Humanities, which took place on Saturday, March 20 at Brown University. Professor Alan Calnan (Southwestern) moderated the panel, and other participants included Professors Christopher Robinette (Widener) and Sheila Scheuerman (Charleston). Below are the abstracts and links to audio from the presentations and Q&A. Thanks to Alan Calnan for moderating and to all for participating.
I. Prof. Alan Calnan -- Introduction (audio)
II. Prof. Christopher Robinette -- "The Instrumentalism in Tort Reforms" (audio)
The traditional view among legal historians is that tort was largely deontic private law until the late nineteenth century. Due to factors such as the Industrial Revolution and the advent of liability insurance, tort became (more) instrumentalist. A survey of major tort reforms over the course of the last century provides evidence to support this view. Each of the reforms--workers' compensation, no-fault automobile insurance, products liability, and "modern" tort reforms (such as damage caps)--is based in instrumentalism. Furthermore, the reforms become increasingly integrated into tort law as time passed. The earliest reform, workers' compensation, was a substitute for tort law. By the time of the modern reforms, instrumentalism is operating within tort itself, and covers a multitude of tort cases.
III. Prof. Byron Stier -- ""Examining Litigant Autonomy in Mass Torts: Insights from the Individualism of Ayn Rand" (audio)
Class actions and other aggregate procedural methods raise questions about the relationship of the individual to the group. Litigant autonomy -- the litigant's interest in controlling his or her lawsuit -- has generally been considered merely one value among others in mass tort litigation, and only recently has a robust commitment to litigant autonomy been seen to call into question the entire structure of class action practice. In looking for insight into the proper place for litigant autonomy in class actions or other management methods, we might fruitfully turn to political debates concerning the relationship of the citizen to the state, for both settings examine the rights of the individual against the perceived needs of the group or collective. For discussion of that political question, I look to an unusual source -- outside law, to the literature of one known for her radical political individualism, Ayn Rand. Her novel, "We The Living," which was published in 1936 and is set in the aftermath of the communist revolution in Russia, puts forth a moral argument for individualism stemming from the sanctity of one's own life, and of one's control of one's own life, for one's own ends, not the group's; she also argues that personal tragedy and systemic corruption accompany an approach that fails to respect individuals' lives and choices. Turning back to mass tort litigation, I suggest that our notion of litigant autonomy can be informed by Rand's themes and that current class action rules show flaws similar to the collectivism that Rand critiques. Viewing litigant autonomy not merely as one value among others, but instead as an organizing principle that must be respected as a core right, I suggest that current class action rules regarding notice, opt-out, and settlement are problematic because they do not allow adequate expression of individual preference and they blunt each class member's individuality. In addition, by avoiding individual control, the current class action rules create fertile ground for corruption and collusive settlements.
IV. Prof. Sheila Scheuerman (audio)
In my presentation, I examine whether and when tort law should permit "no injury" claims -- claims where the plaintiff's harm has not yet materialized. Examples of these suits include medical monitoring actions, products liability claims where a known defect exists, but the product has not yet malfunctioned, as well as consumer fraud claims where the consumer's decision was not affected by the defendant's alleged misrepresentation. Recent years have seen an influx of these suits under an array of tort and contract theories. Traditionally, however, tort doctrine has premised liability on an injury to an identified party. But is "injury" a necessary pre-requisite? I address whether tort values support these "no injury" causes of action. In other words, should "no injury" claims be actionable under the varied rationales for the tort system and, if so, under what circumstances?
V. Questions and Answers (audio)
March 29, 2010 in Aggregate Litigation Procedures, Books, Class Actions, Conferences, Informal Aggregation, Lawyers, Mass Tort Scholarship, Procedure, Products Liability, Regulation, Settlement | Permalink | Comments (0) | TrackBack
January 22, 2010
Redish on Whether Class Actions are Unconstitutional
Both the ABA Journal and Forbes have recently featured Professor Martin Redish's book, Wholesale Justice. As he points out in a comment to the ABA article, both pieces "somewhat overstate and simplify my position. I do not really suggest that class actions are inherently unconstitutional." The book itself is an interesting meld of class action theory, constitutional theory, and democratic theory. Although it's impossible to summarize the book in a short blog post, here's a quote from page 231 in which he recommends three pivotal changes:
The major constitutionally dictated changes would be (1) the settlement class action (i.e., a proceeding in which certification has been sought solely on the condition that the court approve a prearranged settlement) would be held to contravene the case-or-controversy requirement of Article III; (2) all mandatory classes, with the possible exception of the (b)(1)(A) category involving situations in which inconsistent behavior on the part of the party opposing the class toward individual class members would be either impossible or unduly oppressive, would be deemed violations of the Due Process Clause; and (3) the existing opt-out structure for (b)(3) classes would be found both to violate due process and to depart from key notions of democratic theory, except in situations in which the individual claims, though sufficiently large to reasonably justify the filing of a claim form as part of a settlement or judicial award, would be insufficiently large to justify individual suit.
For the interested reader, Sam Issacharoff has written a number of articles that provide a counterpoint to Redish's arguments.
September 04, 2009
New civil procedure book
My new book, Inside Civil Procedure: What Matters and Why, has been released by Aspen Publishers. Written for law students, it tries to explain the concepts of civil procedure in a comprehensible and engaging way. Readers of this blog won't be surprised that I couldn't resist mentioning MDL, mass settlements, and the difficulty of certifying mass tort class actions. Mostly, however, the book sticks to the basics. So if anyone's trying to understand personal jurisdiction or Erie or the ever-changing federal pleading standard ...