Wednesday, March 17, 2010
ASLCH Annual Conference and Presentation on "Examining Litigant Autonomy in Mass Torts: Insights from the Individualism of Ayn Rand"
On Saturday, March 20, I'll be speaking as part of a panel on "Pluralism in Tort Law and Litigation" at the annual meeting of the Association for the Study of Law, Culture, and Humanities, at Brown University in Rhode Island. The panel will be moderated by Professor Alan Calnan (Southwestern), and other presenting panelists are Professors Christopher Robinette (Widener) and Sheila Scheuerman (Charleston). A podcast of the panel may later be posted on this blog. Given the conference's focus on culture and humanities, my talk draws upon literature and political theory. Here's the abstract for my talk:
Byron Stier -- "Examining Litigant Autonomy in Mass Torts: Insights from the Individualism of Ayn Rand"
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.
March 17, 2010 in Aggregate Litigation Procedures, Class Actions, Conferences, Informal Aggregation, Lawyers, Mass Tort Scholarship, Procedure, Products Liability, Settlement | Permalink | Comments (0) | TrackBack (0)
Monday, March 8, 2010
Here's an announcement from Prof. Richard Cupp about an upcoming conference at Pepperdine:
The Pepperdine Law Review is hosting a symposium on April 16, 2010 entitled Does the World Still Need United States Tort Law? Or Did it Ever? The symposium will examine the present and future influence of United States tort law on other nations in light of globalization’s rise and United States tort law’s concurrent retrenchment on many fronts.
Some of the symposium speakers include Michael Bidart (Shernoff, Bidart & Echeverria), Ellen Bublick (University of Arizona), Richard L. Cupp (Pepperdine), John C.P. Goldberg (Harvard), Michael D. Green (Wake Forest), Ellen S. Pryor (SMU), Robert L. Rabin (Stanford), Michael L. Rustad (Suffolk), Victor E. Schwartz (Shook, Hardy & Bacon), Marshall S. Shapo (Northwestern), Stephen D. Sugarman (Boalt Hall), and Roger P. Alford (Pepperdine) . International scholars speaking at the symposium include Peter Cane (Australian National University), Bruce Feldthusen (University of Ottawa), Lewis N. Klar (University of Alberta), the Honorable Allen M. Linden (Pepperdine; former judge of the Federal Court of Appeal of Canada), and Jane Stapleton (University of Texas). The Honorable Allen M. Linden will be honored at the symposium for his enormous contributions as a tort law scholar and teacher both in Canada and in the United States.
A limited number of stipends are available for law professors who wish to attend the symposium. Please contact Professor Richard Cupp at email@example.com regarding stipend applications.
Monday, February 15, 2010
Professor Carrie Menkel-Meadow (Georgetown & UC Irvine) and Dean Bryant Garth (Southwestern) have posted to SSRN their essay, Process, People, Power and Policy: Empirical Studies of Civil Procedure and Courts, which is forthcoming in the forthcoming Oxford Handbook of Empirical Studies. Here's the abstract:
This review essay, by Professor Carrie Menkel-Meadow and Dean Bryant Garth, reports on the history and deployment of empirical studies of civil procedure rules, court policies, and legal developments for reforms of court procedures and practices in both the United States and England and Wales. It traces the influence of particular individuals (e.g., Charles Clark in the United States, and Harry Woolf in England) in the use of empirical studies of litigation patterns and court rules to effectuate legal reforms. The essay reviews some particularly contentious issues over time, such as whether there is/was too much or too little litigation, access to courts, discovery practices, evaluations of the effects of particular rules, such as Rule 11 verification requirements, class actions, and practices such as court use of ADR, case management, and pre-trial conferences. The authors argue that empirical research on procedures and policies in courts have mostly been conducted in service of particular reform agendas, with a few exceptions of more "pure academic" study. The essay concludes with some suggestions for research questions that explore questions of who does the research for what purposes. Do researchers use research to develop their own "human capital" or legal reform influence? How do we know what optimal rates of court usage are? Can empirical studies shed light on more normative questions about what are optimal levels of process, access to courts, and when justice is delivered in formal court institutions?
Saturday, February 13, 2010
On behalf of GW's James F. Humphreys Complex Litigation Center, Professor Roger Trangsrud has organized a conference on the American Law Institute's Principles of the Law of Aggregate Litigation. It will be held at George Washington University Law School on March 12, 2010. The four ALI reporters (Sam Issacharoff, Richard Nagareda, Bob Klonoff, and Charlie Silver) will serve as panel moderators. More information on registration (which is free, but space is limited) can be found at: http://www.law.gwu.edu/News/20092010Events/Pages/AggregateLitigationCriticalPerspectives.aspx
Here's the write-up of the panels:
Panel One: Issues in the Certification of Class Actions
A. Context and introduction by moderator Richard Nagareda, professor of law, Vanderbilt University School of Law
B. Certification Procedures after IPO and Hydrogen Peroxide (Richard Marcus, Horace O. Coil Chair in Litigation, University of California Hastings College of the Law)
C. Game Theory, Opt-Out Rights, and the Indivisibility of Remedies (Jay Tidmarsh, professor of law, Notre Dame University School of Law)
D. Solving Choice-of-Law Issues in State-Law Class Actions (David Rosenberg, Lee S. Kreindler Professor of Law, Harvard Law School)
E. Aggregate Litigation's Jurisdictional Confusion
(Patrick Woolley, Beck, Redden & Seacrest Professor, University of Texas School of Law)
F. Response: Richard Nagareda
Panel Two: Other Issues Attending the Use of Class Actions
A. Context and introduction by moderator Robert Klonoff, dean and professor of law, Lewis & Clark Law School
B. Evaluating the Fairness of Class-Action Settlements (Alan Morrison, Lerner Family Associate Dean for Public Interest and Public Service Law, The George Washington University Law School)
C. Shady Grove, Erie, and Statutory and Contractual Limitations on Class Actions. (Linda Mullenix, Morris & Rita Atlas Chair in Advocacy, University of Texas School of Law)
D. Precluding Abandoned Claims in Class Actions (Ed Sherman, W.R. Irby Chair in Law, Tulane University Law School)
E. Response: Robert Klonoff
Panel Three: Non-Class Aggregate Litigation
A. Context and introduction by moderator Samuel Issacharoff, Bonnie and Richard Reiss Professor of Constitutional Law, New York University School of Law
B. Aggregation and Privatization of Enforcement (Judith Resnik, Arthur Liman Professor of Law, Yale Law School)
C. Group Consensus, Individual Consent: Governance in Nonclass Aggregation (Elizabeth Chamblee Burch, assistant professor, Florida State University College of Law)
D. Rethinking Adequacy of Representation: Lessons for Class Actions and Aggregate Litigation (Robert Bone, G. Rollie White Teaching Excellence Chair in Law, University of Texas School of Law)
E. Response: Samuel Issacharoff
Panel Four: Ethics in Aggregate Litigation
A. Context and introduction by moderator Charles Silver, Roy and Eugenia C. McDonald Endowed Chair in Civil Procedure, professor of government, University of Texas School of Law
B. Ethical Issues in the Aggregate Settlement of Related and Unrelated Claims (Thomas Morgan, Oppenheim Professor of Antitrust and Trade Regulation Law, The George Washington University Law School)
C. The Need for Greater Ethical Rules in Class-Action and Other Agregated Litigation (Nancy Moore, Nancy Barton Scholar, professor of law, Boston University School of Law)
D. Ethical Constraints on Initiating and Resolving Non-Class Aggregate Litigation (Lester Brickman, professor of law, Benjamin N. Cardozo School of Law)
E. Mass Settlements and Informed Consent (Howard Erichson, professor of law, Fordham University School of Law)
F. Response: Charles Silver
Wednesday, November 4, 2009
My new paper, The Trouble with All-or-Nothing Settlements, is now available on SSRN. I presented it at last week's symposium in Kansas on "Aggregate Justice: Perspectives Ten Years After Amchem and Ortiz." The theme of the conference got me thinking about the shift in mass dispute resolution. The failed settlements in Amchem and Ortiz were driven by defendants' insistence on peace, and defendants today often demand similar comprehensiveness. Much of the action, however, has shifted from settlement class actions to non-class aggregate settlements. Rather than peace through Rule 23, defendants try to obtain peace by negotiating settlements with all-or-nothing clauses, mandatory withdrawal provisions, or other terms to ensure comprehensiveness. Too often, however, such all-or-nothing settlements lead to ethical problems. This paper is my attempt to unpack the various problems engendered by such deals. Here's the abstract:
When defendants settle litigation involving multiple plaintiffs, they often insist that they will settle only if they obtain releases from all or nearly all of the plaintiffs in the group. Judges, lawyers, and academics largely accept the drive for comprehensive settlements as a given, and many embrace such settlements as a positive goal. All-or-nothing settlements, however, create uncommon pressures and opportunities for abuse. Exploring a number of recent mass settlements that have led to disciplinary proceedings, civil litigation, and criminal prosecutions, this article shows the pressures and opportunities that arise out of defendants' insistence on bringing all claimants into a deal.
The article describes seven types of ethical problems created by demands for fully inclusive settlements. First, all-or-nothing settlements create client-client and lawyer-client conflicts of interest. Second, such settlements exacerbate problems concerning the allocation of settlement funds, including incentives to misallocate. Third, they create a risk of strategic hold-outs as savvy clients may attempt to extort additional money by withholding consent. Fourth, they create an incentive for lawyers to keep settlement money in reserve as a slush fund to ensure full participation, leading to problems of misallocation and client deception. Fifth, they generate loyalty problems by pressuring lawyers to withdraw from representing non-settling clients. Sixth, they create special problems concerning clients’ informed consent to aggregate settlements. And seventh, they introduce a risk of collusion as the interest of plaintiffs’ counsel aligns with the defendant’s interest in getting every plaintiff to sign on to the deal. Although all-or-nothing settlements provide peace for defendants and value for claimants, the troubles they engender suggest that the current love affair with comprehensive settlements - evident in academic writings, judicial pronouncements, and defendant demands - should be tempered by a realistic appreciation of the ethical downside.
I'd be very interested in any comments readers may have. If you have thoughts or suggestions either about the overall analysis or about any of the specific settlements discussed in the paper, please feel free to e-mail me directly or to comment on the blog.
Thursday, October 1, 2009
A symposium at UMKC law school will address the enforcement of constitutional rights after Iqbal will be held on October 22-23. The highlight: Pamela Karlan (Stanford) will be the keynote speaker. The flyer for the conference can be found here: http://www.law.umkc.edu/events/SmithCave/Smith_Cave_Lecture.pdf
Looks like a great line up. ADL
Thursday, September 17, 2009
Kansas Law Review's symposium this year is titled "Aggregate Justice: Perspectives Ten Years After Amchem." Here's the official blurb and the line-up of speakers:
Friday October 30, 2009
Green Hall, 1535 W. 15th Street, Lawrence, Kansas 66045
We are excited to announce this year’s Kansas Law Review Symposium, which will focus on the present and future of aggregate litigation, using Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999), as a springboard for this exploration. The Symposium will feature a number of well-known speakers in the field of aggregate litigation. The event will be held on October 30, 2009, at the University of Kansas School of Law in Lawrence, KS.
Speakers and their affiliations:
- Elizabeth Chamblee Burch (J.D., Florida State University College of Law) is an Assistant Professor of Law at the Florida State University College of Law.
- Howard M. Erichson (J.D., New York University School of Law) is a Professor of Law at the Fordham University School of Law.
- Steven S. Gensler (J.D., University of Illinois, Urbana-Champaign) is the Welcome D. and W. DeVier Pierson Professor of Law at the University of Oklahoma College of Law.
- Laura J. Hines (J.D., University of Michigan) is a Professor of Law at the University of Kansas School of Law.
- Linda S. Mullenix (Ph.D., Columbia University, J.D., Georgetown University Law Center) holds the Rita and Morris Atlas Chair in Advocacy at the University of Texas School of Law.
- Tom Willging (L.L.M., Harvard Law School, J.D., The Catholic University of America, Columbus School of Law) is a senior researcher at the Federal Judicial Center.
- Patrick Woolley (J.D., Yale Law School) is the Beck, Redden & Secrest Professor at the University of Texas School of Law.
Attendance is free and no reservations are required.
For more information, please contact Symposium Editor Shane McCall: firstname.lastname@example.org.
Although my paper is still in its formative stages, its title is "Aggregation, Community, and the Line Between." It builds on my earlier work, "Litigating Groups," and my current work-in-progress, "Litigating Together: Social, Moral, and Legal Obligations," which I'll present at the University of Florida next week. The Kansas article examines our current line drawing scheme, which essentially asks whether the procedurally aggregated individuals form a sufficiently cohesive group before the decision to sue. Here's a short overview/abstract:
This Article non-rhetorically asks whether this is the right dividing line. Although I rely principally on analogies to the class action context, I am particularly concerned about mass tort litigation that proceeds as nonclass aggregation because it fails the predominance test in Rule 23(b)(3). Cohesion, as currently measured by courts is static in that the proxies—requesting uniform relief and having common characteristics that pre-date the litigation—are measured at a particular point in time. And plaintiffs with procedurally aggregated tort claims are unlikely to exhibit the fundamental attributes of a cohesive local community—social bonds, social activities, and community attachment. But what if, by using new communication mediums, we could return to the core cohesion seen in small, rural medieval communities without the corresponding geographic restrictions? Put differently, what if, in drawing the line for cohesive groups, we traced actual cohesion regardless of when it arose? This Article explores that question.
Wednesday, August 12, 2009
Friday, May 1, 2009
Justice David Souter plans to retire from the Supreme Court when the term ends in June, according to new accounts. In the field of mass torts, Justice Souter authored the majority opinion in Ortiz v. Fibreboard Corp., the 1999 decision rejecting a Rule 23(b)(1)(B) limited fund settlement class action in asbestos litigation. After Ortiz, non-opt-out settlement class actions -- which in the 1990s had some appeal as a potential mechanism for resolving future claims in high liability mass torts -- are both difficult and unappealing to use as a mass tort settlement mechanism. For the tenth anniversary of Ortiz, the University of Kansas is planning a symposium in October, organized by mass torts prof Laura Hines.
Friday, March 20, 2009
As I previously briefly noted, Albany Law School is hosting on Friday, March 27 a symposium entitled, Regulating the Cure: Topics Arising Out of the Prescription of Drugs Off-Label. I will be speaking about liability from off-label promotion of drugs. Other participants include Dean Thomas Guernsey (Albany Law); Professors Beverly Cohen (Albany Law), Michael Kane (Albany College of Pharmacy & Health Sciences), Alicia Ouellette (Albany Law), Sarah Scarpace (Albany College of Pharmacy & Health Sciences), and Dan Thompson (Alden March Bioethics Institute); Mollie Hertel (U.S. Government Accountability Office); and practitioners Eric Chaffin (Bernstein Liebhard), Arnold Friede (McDermott, Will & Emery), Patrick Igoe (Registered Patent Attorney), and Raul Tabora (Ruffo, Tabora). Here's a link to the brochure.
Wednesday, March 11, 2009
DePaul University College of Law is hosting the 15th Annual Clifford Symposium on Tort Law and Social Policy. This year's topic is Rising Stars: A New Generation of Scholars Looks at Civil Justice. The symposium will take place on Thursday, April 2, 2009 and Friday April 3, 2009. Speakers include: Professors Shari Diamond (Northwestern), Eric Feldman (Penn), Marc Galanter (Stanford), Myriam Giles (Cardozo), Michele Goodwin (Minnesota), Daniel Ho (Stanford), Stephan Landsman (DePaul), Richard Lempert (Michigan), David Marcus (Arizona), Daniel Markovits (Yale), Robert Rabin (Stanford), Jennifer Robbennolt (Illinois), Margo Schlanger (Washinton Univ.), Anthony Sebok (Cardozo), Neil Siegel (Duke), Jed Shugerman (Harvard), Benjamin Spencer (Washington & Lee), Catherine Struve (Penn), Suja Thomas (Illinois), Katerina Wyman (NYU), Albert Yoon (Toronto), and Kathryn Zeiler (Georgetown).
Monday, March 2, 2009
The ABA's Section of Litigation will have its Annual Conference on April 29 to May 1, 2009 at the Atlanta Marriott Marquis in Atlanta, Georgia. Program topics include Causation and Injury in Toxic Torts -- An Examination of Modern Causation Principles in Toxic Tort Litigation; Enemy of the State -- The Challanges of Civil Litigation with States and Municipalities; and Preemption in Product Liability Litigation.
Monday, February 23, 2009
The Fordham Law Review presents a one-day symposium, "Against Settlement: Twenty-Five Years Later," looking back at Owen Fiss's classic argument in favor of adjudication -- Against Settlement, 93 Yale L.J. 1073 (1984) -- from the perspective of 2009. For those of us who believe that mass tort litigation can and often should be resolved by settlement rather than adjudication, the Fiss argument presents a serious challenge. If mass tort settlements create a form of governance, should we be concerned that the governance is delivered by negotiating parties and their lawyers rather than by a public official?
The symposium speakers include many notables from the fields of ADR, complex litigation, and public interest litigation: John Bronsteen, Amy Cohen, Kenneth Feinberg, Owen Fiss, Samuel Issacharoff, Pamela Karlan, Michael Moffitt, Jackie Nolan-Haley, Susan Sturm, and the Hon. Jack Weinstein. The symposium, which is free and open to the public, will take place on Friday, April 3, 2009 at Fordham Law School in New York City. I'm looking forward to it.
Tuesday, February 17, 2009
Wake Forest University School of Law is hosting A Symposium on the Third Restatement of Torts on April 2-3, 2009 in Winston-Salem, North Carolina. The symposium has assembled a remarkable list of speakers.
Wednesday, February 11, 2009
Albany Law School is hosting a symposium entitled, Regulating the Cure: Topics Arising Out of the Prescription of Drugs Off-Label, in Albany, New York on Friday, March 27, 2009. Papers will subsequently be published in the Albany Law Journal of Science and Technology. I'll be speaking as part of a panel on current topics in off-label drug-use litigation.
Thursday, February 5, 2009
The Southwestern University Law Review has published its issue in connection with the symposium, Perspectives on Asbestos Litigation, which Professor Alan Calnan and I co-chaired here at Southwestern Law School on Friday, January 18, 2008. Here are the articles contained in the issue:
Alan Calnan & Byron Stier, Perspectives on Asbestos Litigation: Overview and Preview, 37 Sw. U. L. Rev. 459 (2008). Download calnan_stier_introduction_final_pdf.pdf
Mark A. Behrens & William L. Anderson, The "Any Exposure" Theory: An Unsound Basis for Asbestos Causation and Expert Testimony, 37 Sw. U. L. Rev. 479 (2008). Download behrens_anderson_article_final_pdf_121808.pdf
Helen E. Freedman, Selected Issues in Asbestos Litigation, 37 Sw. U. L. Rev. 511 (2008). Download freedman_article_final_pdf_121808.pdf
Michael D. Green, Second Thoughts About Apportionment in Asbestos Litigation, 37 Sw. U. L. Rev. 531 (2008). Download green_article_final_pdf_121808.pdf
Phil Harley, Judicial and Practical Perspectives: Transcript of Phil Harley, 37 Sw. U. L. Rev. 533 (2008). Download harley_transcript_final_pdf_121808.pdf
David G. Owen, Against Priority, 37 Sw. U. L. Rev. 557 (2008). Download owen_article_final_pdf_121808.pdf
Keith N. Hylton, Asbestos and Mass Torts with Fraudulent Victims, 37 Sw. U. L. Rev. 575 (2008). Download hylton_article_final_pdf_121808.pdf
James A. Henderson, Sellers of Safe Products Should Not Be Required to Rescue Users From Risks Presented by Other, More Dangerous Products, 37 Sw. U. L. Rev. 595 (2008). Download henderson_article_final_pdf_121808.pdf
Gregory C. Keating, The Heroic Enterprise of the Asbestos Cases, 37 Sw. U. L. Rev. 623 (2008). Download keating_article_final_pdf_121808.pdf
Richard Nagareda, Public and Private Law Perspectives: Transcript of Professor Richard Nagareda, 37 Sw. U. L. Rev. 659 (2008). Download nagareda_transcript_final_pdf_121808.pdf
Howard Erichson, Public and Private Law Perspectives: Transcript of Professor Howard Erichson, 37 Sw. U. L. Rev. 665 (2008). Download erichson_transcript_final_pdf_121808.pdf
Jospeh Sanders, Medical Criteria Acts: State Statutory Attempts to Control the Asbestos Litigation, 37 Sw. U. L. Rev. (2008). Download sanders_article_final_pdf_121808.pdf
Anita Bernstein, Asbestos Achievements, 37 Sw. U. L. Rev. 691 (2008). Download bernstein_article_final_pdf_121808.pdf
Neil Vidmar, Social and Cultural Perspectives: Transcript of Professor Neil Vidmar, 37 Sw. U. L. Rev. 717 (2008). Download vidmar_transcript_final_pdf_121808.pdf
Judy Sloan, Perspectives on Asbestos Litigation: Introduction to the Keynote Address, 37 Sw. U. L. Rev. 731 (2008). Download sloan_transcript_final_pdf_121808.pdf
Barbara Rothstein, Perspectives on Asbestos Litigation: Keynote Address, 37 Sw. U. L. Rev. 733 (2008). Download rothstein_transcript_final_pdf_121808.pdf
My many thanks again to all those who worked on the symposium and the issue, and of course to all of the speakers (including co-blogger Howard Erichson) who made for a fascinating day.
February 5, 2009 in Aggregate Litigation Procedures, Asbestos, Class Actions, Conferences, Ethics, Lawyers, Mass Tort Scholarship, Procedure, Products Liability, Settlement | Permalink | Comments (1) | TrackBack (1)
Sunday, February 1, 2009
Tuesday, January 27, 2009
The defense-oriented Washington Legal Foundation is sponsoring a live webcast entitled Litigate the Torts, not the Mass: Improving the Multi-District Litigation Process, featuring John Beisner and Jessica Davidson Miller of O'Melveny & Myers. The webcast will occur Friday, Jan. 30, 2009, at 10:00 a.m.
Thursday, October 30, 2008
American Conference Institute is running its 13th Annual Drug and Medical Device Litigation Conference in New York on Dec. 9-11, 2008. Speakers include many of the leading defense lawyers in pharmaceutical and medical device product liability litigation, as well as a line-up of judges who have handled many of the recent cases. Topics include preemption, juror perceptions, learned intermediary, litigation holds, scientific experts, politics, global trends, and generics. Ted Mayer and I will speak on ethical considerations in mass tort settlements.
ALI-ABA is running a conference ominously entitled "Asbestos Litigation: Where Is It Going? When Will It End?" in San Antonio, Texas, on Dec. 4-5, 2008, with presentations by prominent lawyers and law professors including John Aldock, Patrick Hanlon, Deborah Hensler, Stephen Kazan, Mark Lanier, Ellen Pryor, Joe Rice, and Perry Weitz.