Mass Tort Litigation Blog

Timothy Lytton on Clergy Sexual Abuse Litigation

Hot off the presses, here's Timothy Lytton's new book on the Catholic Church sex abuse litigation -- Holding Bishops Accountable: How Lawsuits Helped the Catholic Church Confront Clergy Sexual Abuse (Harvard University Press 2008).  The book builds on Lytton's related work of the past few years.  Here's the abstract as posted on SSRN:

The sexual abuse of children by Catholic clergy is arguably the most acute crisis Catholicism has faced since the Reformation. The prevalence of clergy sexual abuse and its shocking cover-up by church officials have obscured the largely untold story of the tort system's remarkable success in bringing the scandal to light, focusing attention on the need for institutional reform, and spurring church leaders and public officials into action.

Stories of the tort system as an engine of social justice are rare. Holding Bishops Accountable tells one such story by revealing how pleadings, discovery documents, and depositions fueled media coverage of the scandal. Timothy Lytton shows how the litigation strategy of plaintiffs' lawyers gave rise to a widespread belief that the real problem was not the actions of individual priests but rather the church's massive institutional failure. The book documents how church and government policymakers responded to the problem of clergy sexual abuse only under the pressure of private lawsuits.

As Lytton deftly demonstrates, the lessons of clergy sexual abuse litigation give us reason to reconsider the case for tort reform and to look more closely at how tort litigation can enhance the performance of public and private policymaking institutions.

HME

Recovering the Social Value of Jurisdictional Redundancy

I just posted a piece that I wrote for the Tulane Law Review Symposium on the Problem of Multidistrict Litigation on bepress (download here) and SSRN (download here).   The piece should appear on both these links shortly.  Here is the abstract:

This essay, written for the Tulane Law Review Symposium on the Problem of Multidistrict Litigation, argues that the focus of proceduralists on centralization as a solution to the problems posed by modern litigation is misplaced. It is time to refocus on the social value of the multiple centers of authority that jurisdictional redundancy permits. This essay presents the case for multi-centered litigation with particular focus on the potential uses of the Multidistrict Litigation Act to realize pluralist values. The descriptive claim put forward by the essay is that jurisdictional redundancy is imbedded in our federalist system and our preference for adversarial adjudication. The normative claim is that judges and scholars should take more seriously the social benefits of pluralism offered by jurisdictional redundancy. In furtherance of this goal, I suggest three factors that judges and policy-makers consider in determining the level of centralization appropriate in a given case: (i) the extent and nature of underlying substantive disagreement, (ii) the costs of inconsistency, and (iii) the role of political power in the litigation. The question judges, legislators and scholars should ask is not only how much pluralism our system of adjudication can tolerate, but also how much uniformity we should expect in a pluralist society.

ADL

David Marcus on Nagareda

David Marcus of the University of Arizona has written an extensive book review of Richard Nagareda's Mass Torts in a World of Settlement.  The review, entitled Some Realism about Mass Torts, will appear in the University of Chicago Law Review.  Here's the abstract:

This essay reviews Richard Nagareda's Mass Torts in a World of Settlement. Nagareda argues that the settlement of a mass tort is an act of governance because it involves the exchange of rights to sue of large classes of plaintiffs for a compensation regime. Some source of legitimacy must give plaintiffs' attorneys, who lack contractual relationships with these plaintiffs, the power to alter these pre-existing rights as fixed by substantive law. Litigation-centered ideals of due process, Nagareda concludes, fall short because they emphasize individual autonomy and thus preclude the sort of mandatory representation settlement requires. He turns to rulemaking to solve the problem of legitimate governance. Agencies should adopt mass tort settlements as public rules.

Masterfully dissecting most of the major mass tort settlements of the past decade, Nagareda convincingly explains how and when mass torts settle, as well as why these settlements often fail. Where Nagareda's otherwise realist account takes a formalist turn is with his claim that plaintiffs have pre-existing rights to sue fixed by substantive law. I argue that a realist account of rights to sue includes procedural avenues for their attempted vindication, as well as their substantive contours, as essential components. This account supports the entity theory of the class action that treats the class as something different than merely an assemblage of individual litigants. The entity theory in turn justifies less scrupulous attention to the due process rights of individual class members. Since these due process rights have often precluded settlement, the entity theory offers a theoretical avenue around some of the difficulties that Nagareda believes justifies a turn to rulemaking.

We recently posted links to Tony Sebok's review of the same book, and earlier we mentioned a short review by Mark Behrens and also featured an interview with Nagareda by Rodger Citron.

HME

Clermont on Litigation Realities

While not specific to mass torts, Kevin Clermont has posted his latest empirical work, Litigation Realities Redux, which is broadly applicable to the litigation process.

Here's the abstract:

Both summarizing recent empirical work and presenting new observations on each of the six phases of a civil lawsuit (forum, pretrial, settlement, trial, judgment, and appeal), the author stresses the needs for and benefits from understanding and using empirical methods in the study of the adjudicatory system's operation.

ECB

Saraceno on the Downsides of Group Litigation

Help has arrived if you are looking for counterarguments to the standard (and to my mind, convincing) argument that collective litigation usually aids plaintiffs by providing economies of scale, permitting investment based on aggregate stakes, and creating settlement leverage.  University of Pavia Ph.D. student Margherita Saraceno has offered an economic analysis of whether group litigation solves the problem of "diluted liability," reaching the contrarian conclusion that aggregation may reduce access and the overall deterrent effect of tort litigation.  Here's the abstract on SSRN of Group Litigation, Access to Justice, and Deterrence:

Policy makers are currently evaluating group litigation as a device to guarantee effective access to justice and to improve deterrence in torts with multiple victims. This paper focuses on how group litigation affects: 1) access to justice, 2) the choice between settlement and litigation, 3) the settlement amount, and finally, 4) deterrence. The main finding is that group litigation does not always improve access to justice and deterrence. On the one hand, group litigation makes it easier for victims to sue, by creating scale economies and improving their confidence in the outcome of a trial. On the other hand, the group is costly for victims to organize and reduces the injurer‘s liability costs by facilitating settlement and creating scale economies at trial. The combined effect might be a reduction, rather than an increase, in the deterrent effect of tort law.

HME

Brown on Asbestos Bankruptcies

S. Todd Brown of Temple University has posted a new paper on SSRN, Section 525(g) Without Compromise: Voting Rights and the Asbestos Bankruptcy Paradox, forthcoming in the Columbia Business Law Review, arguing that the voting structure for approving asbestos bankruptcy trusts under section 524g gives the dominant plaintiffs' firms too much power.  Here's the abstract:

Section 524(g) of the Bankruptcy Code was adopted to protect unknown future asbestos personal injury victims' rights and prospects for financial recovery. To serve these goals and satisfy the demands of due process, Section 524(g) provides two basic forms of virtual representation for future victims - requiring the appointment of an independent legal representative and aligning the interests of future victims with current claimants (75% of whom must approve any plan that invokes Section 524(g)). In recent years, however, the 75% super-majority vote requirement has been transformed into a veto power wielded by a small group of law firms, who control sufficient votes to block any proposed asbestos reorganization plan. These firms use this power to dictate critical steps in the process - including who will be appointed as the future victims' statutory legal representative - and demand terms that violate black letter bankruptcy law. Thus, the current approach leads to a bizarre paradox: the only way to obtain sufficient votes to confirm an asbestos reorganization plan is to include provisions that will render it unconfirmable (or, at least, unable to withstand challenge on appeal). The only way to overcome this paradox as a practical matter is to buy off all current parties who may object, usually by making deals that encroach upon the interests of future victims.
This article challenges the legal and practical justifications for the asbestos veto and outlines several modest modifications to the asbestos bankruptcy process. By restoring traditional negotiating leverage, returning voting power to asbestos victims, ensuring that legal representatives are unburdened by conflicts of interest, and aligning current and future victims' interests; this proposal outlines a more balanced, equitable approach to protecting future victims.

HME

Bone on the Normative Foundations of Litigation Reform

I just ran across a (relatively recent) article by Robert Bone entitled "Securing the Normative Foundations of Litigation Reform," 86 B.U. L. Rev. 115 (2006) and available on SSRN.  Here is the abstract:

Federal court adjudication has changed in major ways over the past thirty years. Judges are more actively involved in promoting settlements than ever before; alternative dispute resolution has moved center stage; and large-scale aggregation of related lawsuits has become much more common. These changes raise deep and difficult questions that implicate core elements of civil adjudication. This symposium Essay explores some of the challenges these developments pose for procedural law in the twenty-first century. At its most general level, the Essay calls for more rigorous normative work in civil procedure and for a better understanding of the relationship between procedure and substantive law. The springboard for the Essay's argument is Professor Robert Cover's famous 1975 article, For James Wm. Moore: Some Reflections on a Reading of the Rules. A careful reading of Cover's article provides a framework for making three main points: first, that a coherent normative account of the procedure-substance relationship is essential to crafting sound procedure; second, that Cover grasped the nature of that relationship more clearly than many proceduralists do today; and third, that we would do well to follow Cover's lead in working out answers to the difficult procedural questions that twenty-first century judges will confront. The Essay concludes by discussing some implications for three critical areas of current and future reform interest: settlement, aggregation, and the proper scope of judicial discretion.

ADL

Elizabeth Thornburg on "Judicial Hellholes"

Professor Elizabeth Thornburg (SMU) has posted an article to SSRN -- Judicial Hellholes, Lawsuit Climates, and Bad Social Science: Lessons from West Virginia, W. Va. L. Rev. (forthcoming 2008).  Here's the abstract:

The American Tort Reform Association (ATRA) was founded in 1986 by the American Medical Association and American Council of Engineering Companies, and now has hundreds of corporate members. Every year, ATRA releases a list of Judicial Hellholes: court systems alleged to be unfair to defendants. The name is definitely catchy: the thought of a judicial hellhole invokes images of Kafka, Satan and the Queen of Hearts. No wonder ATRA's hellhole campaign has embedded itself in media vocabulary. And no wonder state courts and state legislatures bend over backwards to get out from under the hellhole label. Similarly, the U.S. Chamber of Commerce has a spin-off organization,the Institute for Legal Reform, that issues an annual report on each state's lawsuit climate, ranking states from 1 to 50 on their friendliness to business, based on a survey of general counsel of very large businesses and their outside lawyers. Since no state wants to be found near the bottom of the list, the ILR report also creates pressure for legal change.

This essay uses West Virginia as a test case to examine the methodology of the Hellhole and Lawsuit Climate reports. It provides context by briefly tracing the earlier campaigns of tort reform advocates, highlighting some of the ways in which they have played fast and loose with numbers and stories. The essay describes the national Hellhole and Lawsuit Climate campaigns, and then focuses on ATRA's treatment of West Virginia in order to demonstrate the techniques of the hellhole reports. For example, the reports represent opinions as facts, use quotations and anecdotes in a misleading and manipulative way, omit bad facts, and misuse statistics.

Reasonable scholars on all sides of the substantive and procedural issues involved in tort litigation have debated and will continue to debate difficult issues such as deterrence, insurance, proof of causation, procedural efficiency, the role of the courts, the limits of science, and best choice of decision maker. The hellhole reports add nothing to these thoughtful and nuanced debates; indeed, they debase that debate by misleading and misinforming citizens and lawmakers.

BGS

Farber on Torts and Catastrophe

Daniel Farber (Berkeley Law) has just posted an article on SSRN entitled "Tort Law in the Era of Climate Change, Katrina and 9/11: Exploring Liability for Extraordinary Risks."  The abstract follows:

Tort cases generally deal with routine risks - the kind of risk that a person encounters as a result of driving a car or buying a product. These risks are also staples of the insurance industry. Today, however, society faces risks that threaten massive harms to large segments of the public. Such risks materialized with 9/11 and Hurricane Katrina, and may confront us with climate change.

The first part of this article is comprised of case studies of how the tort system has responded to catastrophic risks such as large-scale flooding, terrorist acts, and climate change. Liability approaches vary depending on the problem and jurisdiction, but there is at least no consistent pattern of immunity for those who have created catastrophic risks or failed to take reasonable precautions against them.

Part II examines how compensation for catastrophic risks could contribute to societal goals such as deterring undesirable risks and social risk-spreading. The risk-spreading goal is particularly important because of the reluctance of private insurers to cover such risks. Compensation, whether administrative or judicial, might also contribute to stronger risk prevention or mitigation, and under some circumstances would advance corrective justice.

ADL

Parness on Judicial Settlement Conferences

In the vein of scholarship propounding greater bureaucratization of the courts comes this article - "Improving Judicial Settlement Conferences" - from Jeffrey Parness (Northern Ill.) (and available on SSRN) suggesting more formalization and guidelines for judicial settlement conferences.  Here is the abstract:

Professors Molot, Fuller, Fiss, and Resnik, among others, have expressed concerns about the unbounded, unchecked, unbridled, and virtually unfettered judicial discretion of American trial court judges who preside over civil case settlement conferences. I am also concerned. But the best response is not to abolish or severely restrict judicial settlement conferences. Rather, it is to add more formality and more written guidelines. New guidelines would discourage each trial court judge from marching to the beat of her own drummer. These guidelines should involve, as suggested by Professor Fuller, both more adversary control and more detailed and written criteria. In addition, new guidelines should expressly recognize that the claims and interests that might be discussed at judicial settlement conferences are far broader than the justiciable claims that might be discussed at trial preparation conferences. Thus, civil case settlement talks and civil case settlements subject to same-case judicial enforcement can involve many more claims, interests, and people than would have been involved in any adversarial proceedings. New written guidelines for federal and state courts should follow existing rules and statutes of general and particular applicability already operating in some American trial courts. As with pleading and discovery, new settlement conference guidelines should speak to differences between civil actions, including some distinctions between significant cases and routine cases and between civil cases based upon the amounts in controversy.

ADL

Sebok's Book Review of Nagareda's Mass Torts in a World of Settlement

Professor Anthony Sebok (Brooklyn, pictured left) has published his book review, What Do We Talk About When We Talk About Mass Torts?, 106 Mich. L. Rev. 1213 (2008) Download sebok.pdf , which reviews Professor Richard Nagareda's recent book, Mass Torts in a World of Settlement (2007).

BGS

DePaul Symposium Issue on Challenges to the Attorney-Client Relationship

The DePaul Law Review has published its issue based on its symposium, Challenges to the Attorney-Client Relationship: Threats to Sound Advice?  Among the interesting articles are the following:

Nancy J. Moore, The American Law Institute's Draft Proposal to Bypass the Aggregate Settlement Rule: Do Mass Tort Clients Need (or Want) Group Decisionmaking?, 57 DePaul L. Rev. 395 (2008) (ssrn link).

Frank M. McClellan, The Vioxx Litigation: A Critical Look at Trial Tactics, the Tort System, and the Roles of Lawyers in Mass Tort Litigation, 57 DePaul L. Rev. 509 (2008).

BGS

Toxic Plastics

Concerns about bisphenol-a, or BPA,a chemical used to make hard plastics (such as reusable water bottles, some baby bottles, food containers, liners for canned foods) are growing.  Chemicals from these plastics, especially when heated, leach into food and human bodies.  The effect and toxicity of these chemicals are unclear, but the concern is enough that some retailers are demanding products made without them.  According to the New York Times, Wal-Mart has said that it will withdraw baby products made with BPA. The current data is based on animal studies: "Rat pups exposed to BPA, through injection or food, showed changes in mammary and prostate tissue, suggesting a potential cancer risk. In some tests of female mice, exposure appeared to accelerate puberty."  The article reports that "Canada has begun a study to monitor BPA exposure among about 5,000 people to assess any danger to adults."

Another mass tort in the offing?  A justification for adopting the precautionary principle perhaps?  Some scholars have argued in favor of expanding standing doctrine to include "precautionary standing."  See Jonathan Remy Nash, Standing and the Precautionary Principle, 108 Columbia L. Rev. (2008) also available on SSRN.  Others have argued that the precautionary principle is paralyzing.  See Cass Sunstein and Robert W. Hahn, The Precautionary Principle as a Basis for Decision-Making, The Economists Voice (2005) also available on SSRN.  For an analysis by a brilliant academic see Douglas Kysar, It Might Have Been: Risk, Precaution and Opportunity Costs,  22 Journal of Land Use & Environmental Law 1 (2006) available on SSRN.

ADL

Grisham's Latest

What do mass tort scholars do in their down time?  ... Well, read a mass tort novel, of course.  John Grisham's latest book, The Appeal, involves a toxic tort of groundwater pollution that injures many in a Mississippi town -- sort of Grisham thriller meets Jonathan Harr's A Civil Action.  The plot steers off into pursuing issues of judicial elections, but along the way there are plenty of mass tort themes, involving David vs. Goliath plaintiff-defendant litigation, class actions, and the implications of a trial verdict for case inventories.  I'm in the middle and having fun, as I have reading Grisham since The Firm came out back in the early 90s.

For the last few years, I've been gradually assembling a "mass tort movie library" of DVDs, which I lend out to students in my mass tort litigation class, and I use a clip of the film version of A Civil Action in class.  I've been mulling over incorporating excerpts from novels in my class, as well -- Grisham's King of Torts also sounds many mass tort themes.  Part of the appeal of studying mass tort litigation is the variety of perspectives available -- not only substantive and procedural, but also factual and fictionalized.

BGS

Class Action Watch Issue

The Federalist Society has posted the March 2008 issue of Class Action Watch.  Articles include the following:

Cy Pres Settlements by Theodore H. Frank (AEI)

The Supreme Court Rejects "Scheme Liability" in Securities Class Actions by Larry Obhof (Kirkland & Ellis)

Dukes, et al. v. Wal-Mart Stores, Inc.: Ninth Circuit Affirms Largest Employment Discrimination Class in History by John Beisner, Evelyn Becker & Karl Thompson (all of O'Melveny & Myers)

The Problem of Class Action Tolling in Mass Tort Personal Injury Litigation by Jessica Davidson Miller & Geoffrey Wyatt (both of O'Melveny & Myers)

FACTA Truncation: Applicable to the Digital World? by Shawn J. Organ (Jones Day)

Silberblatt v. Morgan Stanley: Class Action Court Protects Unnamed Class Members by Jack Park (Spec. Asst. for Inspector Gen. for Corp. for Nat'l & Community Service)

"Reverse Bifurcation" Approach to Punitive Damages Trials in West Virgina by Mark A. Behrens & Christopher E. Appel (both of Shook Hardy)

BGS

Moves: Erichson and Burch

Two of your mass tort bloggers have accepted offers to join new law faculties next year.  Howard Erichson is moving from Seton Hall to Fordham Law School.  Beth Burch is moving from Samford (Cumberland) to Florida State University College of Law.

HME

Special Compensation for Victims of Terrorist Attacks?

Robert Rabin (Stanford Law) and Stephen Sugarman (Boalt Hall) have just posted an intriguing article entitled "The Case for Specially Compensating the Victims of Terrorist Attacks: An Assessment" on SSRN. The paper was published in the Hofstra Law Review in 2007.  The abstract explains:

In light of the daunting prospect of terrorists striking again on the home front, what special measures, if any, should be taken to assure compensation to those killed or injured by such violence? The starting point for any discussion of the compensation of these victims (and their survivors), we believe, is an appreciation of the baseline arrangements our nation has in place for those killed or seriously injured regardless of cause. One policy option would be to leave victims of terrorism to whatever they might obtain from these baseline tort and social welfare compensation systems in default of special treatment. On what basis, if any, should terrorist victims be singled out for different treatment? Is there something about being victims of terrorism that should entitle them and their survivors to be better treated than they would be by Social Security, victims of violent crimes schemes, and the like? Is there something about tort law's application, or non-application to the terrorist setting, that makes a special compensation scheme appropriate for victims of terrorism?

In addressing these questions, there are two basic alternatives to the default solution. One would involve the creation, ex ante, of an ongoing victim compensation fund in anticipation of the occurrence of future terrorist acts. The other would involve the ad hoc creation of a fund established after the occurrence of a terrorist event to provide retrospective compensation to victims. Israel and Northern Ireland are examples of countries with longstanding experience with terrorism, which have adopted legislative schemes of the first sort. In the U.S., the 9/11 Victim Compensation Fund is an example of the ad hoc retrospective approach.

We begin by commenting on the 9/11 Fund itself, setting it in the context of other American compensation schemes that arose out of concerns about the appropriateness of having injury victims seek compensation through tort law. Next, we consider, in turn, the ex ante and ex post options for addressing the claims of terrorist victims. Finally, we return to the default systems mentioned above, raising the question of whether they offer in all, or most, circumstances the most sensible approach to dealing with future incidents of personal injury from terrorist acts.

ADL

RAND on Electronic Discovery

RAND's Institute for Civil Justice has released a report on electronic discovery: James M. Dertouzos et al., The Legal and Economic Implications of Electronic Discovery (2008).  Here's a description:

Pretrial discovery — the exchange of relevant information between litigants — is central to the American civil legal process. As computer technologies continue to develop, concerns have arisen that, because of the sheer volume of electronically stored information, requests for electronic discovery (e-discovery) can increase litigation costs, impose new risks on lawyers and their clients, and alter expectations about likely court outcomes. For example, concerns about e-discovery may cause businesses to alter the ways in which they track and store information, or they may make certain types of plaintiffs and defendants more likely to sue, settle out of court, or go to trial. This paper presents the results of an exploratory study to identify the most important legal and economic implications of e-discovery. The authors interviewed plaintiffs and defense attorneys as well as corporate information technology staff and in-house counsel, and they reviewed the current state of e-discovery law and procedure. They then developed a preliminary model to explore the range of plausible effects that e-discovery might have on case outcomes. After summarizing this research, the authors propose five studies that will evaluate how e-discovery affects and is affected by technology, costs, business practices, legal outcomes, and public policy.

BGS

Nagareda on the Globalization of Aggregation

Richard Nagareda (Vanderbilt) has just posted a promising article on SSRN entitled "Aggregate Litigation Across the Atlantic and the Future of American Exceptionalism."  Here is the abstract:

This article analyzes the emerging phenomenon of trans-Atlantic civil litigation on an aggregate basis - chiefly, though not exclusively, by way of class actions. European systems have shown a growing receptiveness for aggregate litigation, but treatments of this development have consisted largely of description. This article offers an analytical framework with which to anticipate the structural dynamics of transnational aggregate litigation in the twenty-first century.

Simply put, these structural dynamics will tend to recreate the difficulties seen in the context of nationwide class action litigation within the United States. The nationalization of US commerce led to aggregate litigation of a commensurately national scope. The result, however, was regulatory mismatch - for the scope of aggregation to expand to match the scope of the disputed nationwide activity, rather than the jurisdictional sovereignty of the forum. The globalization of commerce, coupled with the very multiplicity of approaches to aggregate litigation seen today, has a considerable tendency to replicate these mismatches - now, with international proportions. The recent Vivendi securities class action in the United States and the pathbreaking Royal Dutch Shell settlement under the 2005 Dutch collective settlement act confirm this trend.

The article then analyzes the vehicles by which to address regulatory mismatches. Here, too, the US experience is instructive, underscoring both the centrality and the limitations of the two vehicles by which to achieve a kind of de facto, informal governance: the principles for transnational claim preclusion and the latitude available for private contracts to shift disputes from litigation to arbitration.

ADL

Brooklyn Law School Symposium -- The Products Liability Restatement: Was it a Success?

On November 13 and 14, 2008, Brooklyn Law School will host a symposium entitled, The Products Liability Restatement: Was it a Success?  Presenters from academia include: Professors Richard Ausness (Kentucky), Anita Bernstein (Brooklyn), Margaret Berger (Brooklyn), Ellen Bublick (Arizona), Edward Cheng (Brooklyn), Richard Cupp (Pepperdine), Mary Davis (Kentucky), Mark Geistfeld (NYU), Michael Green (Wake Forest), James Henderson (Cornell), Lars Noah (Florida), David Owen (South Carolina), Robert Rabin (Stanford), Jane Stapleton (Texas), and Aaron Twerski (Brooklyn).  Presenters from the practicing bar include: Sheila Birnbaum (Skadden), Hildy Bowbeer (3M), Elena Cappella (ALI), Bob Conason (Gair, Gair), Michael Hoenig (Herzfeld & Rubin), Paul Rheingold (Rheingold, Valet),  Kenneth Ross (Bowman & Brooke), Victor Schwartz (Shook, Hardy), Larry Stewart (Stewart Tilghman), and Malcolm Wheeler (Wheeler Trigg).

BGS

Charleston Law Review Symposium Issue on Punitive Damages After Philip Morris v. Williams

Last September, Charleston Law School hosted a symposium entitled, Punitive Damages, Due Process, and Deterrence: The Debate After Philip Morris v. Williams.  (See prior posts here and here.)  The resulting symposium issue of the Charleston Law Review has just been published.  Articles in the issue include the following:

Anthony Sebok, After Philip Morris v. Williams: What is Left of the "Single-Digit" Ratio?, 2 Chas. L. Rev. 287 (2008)

Anthony J. Franze, Clinging to Federalism: How Reluctance to Amend State Law-Based Punitive Damages Procedures Impedes Due Process, 2 Chas. L. Rev. 297 (2008).

Neil Vidmar & Matthew Wolfe, Fairness Through Guidance: Jury Instruction on Punitive Damages After Philip Morris v. Williams, 2 Chas. L. Rev. 307 (2008)

Christopher J. Robinette, Peace: A Public Purpose for Punitive Damages?, 2 Chas. L. Rev. 327 (2008).

Keith N. Hylton, Due Process and Punitive Damages: An Economic Approach, 2 Chas. L. Rev. 345 (2008)

Victor E. Schwartz & Christoper E. Appel, Putting the Cart Before the Horse: The Prejudicial Practice of A "Reverse Bifurcation" Approach to Punitive Damages, 2 Chas. L. Rev. 375 (2008)

Elizabeth J. Cabraser & Robert J. Nelson, Class Action Treatment of Punitive Damages Issues After Philip Morris v. Williams: We Can Get There From Here, 2 Chas. L. Rev. 407 (2008)

Byron G. Stier, Now It's Personal: Punishment and Mass Tort Litigation After Philip Morris v. Williams, 2 Chas. L. Rev. 433 (2008).

Michael L. Rustad, The Uncert-Worthiness of the Court's Unmaking of Punitive Damages, 2 Chas. L. Rev. 459 (2008)

Downloads of the articles via .pdf files are available at TortsProf Blog.

BGS

Alemanno on the Precautionary Principle and the ECJ

A very interesting article recently posted on SSRN by Alberto Alemanno entitled: The Shaping of the Precautionary Principle by European Courts: From Scientific Uncertainty to Legal Certainty.  Here is the abstract:

The aim of this study is to illustrate the role played by EC Courts in shaping the controversial precautionary principle which allows the adoption of protective measures in situations of scientific uncertainty. Called upon reviewing the legality of national and Community measures inspired by a precautionary approach, both the European Court of Justice (ECJ) and the Court of First Instance (CFI) contributed to development of the precautionary principle. They did not simply lay the ground for the recognition of the principle in the EC legal order, by turning a mere state of mind into a general principle of Community law, but they also defined the conditions triggering its invocation. In short, the EC courts' case law has been crucial in determining when, how and by whom the precautionary principle may be relied upon in Community legal order.

ADL

Hadfield on the September 11 Fund and Litigation

Gillian Hadfield (USC) has posted what promises to be a fascinating qualitative analysis on the decision of victims of the terror attacks of September 11, 2001 to litigate or obtain compensation through the September 11 Fund.  The Article, called "Framing the Choice Between Cash and Courthouse: Experiences with the 9/11 Victim Compensation Fund" will be published in the Law and Society Review and is posted on SSRN.  This is a very important contribution to our thinking on what types of procedures ought to be used in mass tort cases.  Here is the abstract:

In this paper I report the results of a quantitative and qualitative empirical study of how those who were injured or lost a family member in the September 11, 2001 terrorist attacks evaluated the tradeoff between a cash payment - available through the Victim Compensation Fund - and the pursuit of litigation. Responses make it clear that potential plaintiffs saw much more at stake than monetary compensation and that the choice to forego litigation required the sacrifice of important non-monetary, civic, values: obtaining and publicizing information about what happened, prompting public findings of accountability for those responsible, and participating in the process of ensuring that there would be responsive change to what was learned about how the attacks and deaths happened. The results shed light on the framing component of the transformation of disputes, and in particular on how potential litigants see the decision to sue, or not, as a decision as much or more about how they understand their relationship to their community and their responsibilities as a citizen as how they evaluate monetary considerations.

ADL

Mnookin on Idealizing Science and Demonizing Experts

Jennifer Mnookin (UCLA) has just posted an article on SSRN entitled "Idealizing Science and Demonizing Experts: An Intellectual History of Expert Evidence," 52 Villanova L. Rev. (2007).  The Article provides some much needed perspective on the role of science in litigation.  Here is the abstract:

This Article, published in a symposium issue focusing on science and expertise, traces the early reception of the modern expert witness. It describes in some detail the widespread frustrations with expert witnesses in court in the closing decades of the nineteenth century, focusing in particular on the two most vociferous critiques: that experts too often became partisans, mere mouthpieces for the party that hired them; and that expert testimony was so frequently contradictory that it confused and perplexed, rather than enlightened, the lay jurors who heard it.

The Article argues that these criticisms can only be properly understood by recognizing two important aspects of how expert evidence was being wielded and understood in this period. First, it is important to recognize that even amidst the rampant complaints by the bench, bar, and experts themselves, about the content and methods of expert testimony, the actual use of expert evidence was simultaneously increasing. Second, I argue that a key source of the dissatisfaction with expert testimony was a disjunction between a set of idealized expectations for scientific evidence and the practical realities of its use in the courtroom. It was precisely because of what science was thought to be able to offer to the process of legal decisionmaking, that the spectacle of warring experts provoked such frustration and anger. Science ought to have been able to offer proof more objective, more certain, and more neutral than that of the lay eyewitness, or so believed scientists and legal commentators alike. When it failed to do so, this failure was frequently attributed to partisan excess or the problems of adversarialism, rather than recognized as being, at least in significant part, the result of unrealistic expectations for science itself. In the conclusion, I suggest that this idealized conception of science lingers with us today as well, and continues to influence how we understand and critique expert evidence in court.

ADL

Transparency in the Court System

Lynn LoPucki (UCLA) has recently posted an article entitled "Court Transparency" on SSRN.  This article discusses an issue that will be increasingly important, the availability of filings and other court data maintained electronically to the general public and to scholars.  In the mass tort context, there is a significant amount of data not kept by the court system that would be useful to policy makers and scholars, so this article address only part of the question, but a very important part.  It got me thinking that perhaps in the electronic age it would be possible to file discovery responses with the courts and make them universally available.  Would this be a good or bad thing?  The counter-arguments and objections to transparency that he raises are also important to think about seriously.  Here is the abstract:

Over the past decade, technology has transformed the federal courts. The federal courts moved from paper to electronic filing, resolved daunting privacy problems, and made their files available on PACER - thereby becoming the world's most transparent court system. Now they have already embarked on what may be a second, equally important transformation - the use of relational forms from which court data can be extracted automatically. This Article describes the technology and seeks to project and evaluate the effects of that second transformation.

If it occurs, the second transformation would create millions of windows into the courts at virtually no cost to the government. All relevant aspects of the courts' decision making would be revealed to policymakers, litigants, and the public, in forms they could readily comprehend. All would be able to see who wins what and how often. That would give policy makers the feedback necessary to fine tune the system, lawyers the ability to predict the outcomes of their cases, and the public the ability to see what courts actually do. Members of the public could also see whether the precautions they take for supposed legal reasons are the right ones.

Opponents argue that court record transparency (1) will expose parties and witnesses to the risk of identify theft and other harms, (2) will invade privacy by making previously difficult-to-obtain public record information about individuals readily available, and (3) will pressure judges in ways that deprive them of judicial independence. The Article argues that none of those objections is well-founded.

ADL

Behrens, Sebok on Nagareda's Mass Torts in a World of Settlement

Mark Behrens of Shook, Hardy & Bacon has a short book review of Professor Richard Nagareda's Mass Torts in a World of Settlement in the Federalist Society's February issue of Engage.  Prior posts on Professor Nagareda's book are here (see interview below) and here.

For further views of Professor Nagareda's book, see also a September 2007 FindLaw column from Professor Anthony Sebok (Brooklyn), who will also be reviewing Professor Nagareda's book in a forthcoming issue of the Michigan Law Review.

BGS

Interview with Richard Nagareda on Mass Torts in a World of Settlement

This blog has featured Richard Nagareda (Vanderbilt)'s new book Mass Torts in a World of Settlement in a previous post.  Here is an interview of Nagareda sent to me by Rodger Citron (Touro) that may interest our readers:

Vanderbilt Law School Professor Richard A. Nagareda became interested in mass torts litigation while he was a student at Harvard law School, worked in private practice on an important class action that attempted to resolve the asbestos litigation – the case, Amchem Products, Inc. v. Windsor, eventually went to the Supreme Court – and now has written Mass Torts in a World of Settlement (University of Chicago Press 2007), which makes the case for rethinking the legal system’s current approach to resolving certain types of mass torts lawsuits.  In his book, Nagareda addresses litigation over a mass-marketed product that involves claims of injury to large numbers of people and a delay in the time between a person’s exposure to a harmful product and that person’s development of an injury.  The numerous lawsuits generated by claims of exposure to asbestos are representative of the cases studied by Nagareda.

Nagareda says that there are two fundamental flaws in the resolution of mass torts claim in the current legal system.  First, settlements in mass torts cases often do not sufficiently protect future claimants – those individuals who have been exposed to the defective product but do not yet show signs of injury.  Nagareda argues that this lack of protection results, in large part, a related problem in the resolution of mass torts cases.  Currently the settlement of such cases is seen as raising only litigation-related questions.  However, such settlements also – even primarily – implicate questions of governance and administration, according to Nagareda.  In his book, he outlines a number of suggestions for improving the legal system’s approach to resolving mass torts lawsuits.   On November 30, 2007, Rodger D. Citron interviewed Nagareda at a conference at the University of Pennsylvania Law School.  An edited transcript of their conversation follows:

Q:    Is the recent settlement in the Vioxx litigation against Merck the type of case that you address in your book?
RN:      It is actually in a kind of grey area. . . .  [I]t’s very close to what I talk about in the book because it’s clearly dealing with a pharmaceutical product mass-marketed and in that sense presented some of the same coordination problems.  [However, t]he temporal dispersion problem was less of a problem at least when it came to the point of designing a comprehensive settlement.  That is because of the particulars of the underlying science surrounding Vioxx.  My understanding is that of the sorts of people who have even colorable claims of a connection between taking Vioxx and suffering a heart attack are people, who have, at least by now, suffered the heart attack. 

Q:      Can you describe what occurs in the litigation and then resolution of mass torts cases in the current system?
RN:      [V]iewing things in the prism of litigation has an obvious truth to it but it is also somewhat misleading and doesn’t really describe what is going on in these kinds of litigations right now. . . .  [L]itigation is in one way or another simply a prelude . . . to some effort through some mechanism – whether we could call it a class action or a reorganization bankruptcy or a multi-district litigation proceeding as in Vioxx – to some effort to make and enforce a comprehensive peace to set the terms for the resolution of these claims.  Once you move from litigation to this peacemaking process, what the peacemaking process involves is a kind of administration.  You set up a grid that defines, in very simplified way the characteristics of the claims that you are going to pay, and you set up some framework, typically with specific dollar amounts saying what you are going to pay for those kinds of claims.  My book is about this process of moving from litigation, as we conventionally think about it, to this kind of administration and the role that lawyers and judges play in that process.

Q:       In the current legal system, what problems arise in the transition from initial lawsuit to the peacemaking process you describe? 
RN:      [I]n the most immediate sense, lawyers, particularly lawyers on the plaintiffs’ side, are actually functioning in a different way then we conventionally think about a lawyer functioning for a client. . . .  [W]hat is going on in these sorts of settlements is a kind of leveraging.  What the plaintiffs’ lawyer is doing is leveraging their current, what’s called ‘inventory of claims’, into the ability to not only . . . obtain compensation for those claimants, but also [using that inventory of claims] as the basis for those lawyers asserting a much broader power that goes beyond the strict lawyer-client relationships that they have with their existing clients.  And that is the power to set the terms in one way or another under which people who are not currently their clients and may never become their clients will get paid.  I think we need to move away from a litigation-based or client-based conception of what’s going on to something that does have a more kind of administrative tinge to it, where the relationships, where the power that’s being exercised is not the byproduct of some contract [i.e.] a lawyer-client retention agreement. 

Q:      How would you change the current system?
RN:      Well, first, I think the main point of the book is, simply for people to start from an accurate descriptive account of what is going on.  Because I think we can certainly debate what the right approaches would be, but I think we need to start with an accurate and un-romanticized picture of what’s going on.  [I]f we proceed from a more accurate picture, then I think the fundamental challenge for the law is not to think of these peace-making mechanisms in their various procedural categories . . . .  [Instead t]he fundamental problem is how do we achieve closure in a way that gives us confidence that the process . . . is such that future claimants will be adequately provided for?  The pervasive problem . . . is that we see the same kind of problem cropping up again and again.  And that is resources are over-consumed by present day claimants and ultimately to the financial benefit of their lawyers, and future claimants are not adequately provided for.  What I say in the book is . . . we cannot rely on the individual claimants, realistically, to police this process. 

Q:    What are the obstacles in the current legal system to your approach? 
RN:    Current law really inhibits us from getting there . . . because its starts from the notion that it’s a conflict of interest for lawyers to have an existing inventory of clients and then to try and represent in some negotiation future claimants. 

Q:     In your book, you discuss the Supreme Court’s decision in the Amchem case as representative of the current legal system’s views on conflicts of interest in these cases.  Is the Amchem decision a cause or a symptom of the problems you describe?
RN:      Amchem flows from things that are much more deeply ingrained than our class action rules or even civil procedure thinking. . . .  [W]hat I think that was missing in Amchem is both a recognition of this leveraging that’s going on the part of plaintiff’s lawyers, and what’s also missing in our broader thinking about this is the degree to which we need to get away form conventional thinking in terms of lawyer-client relations and conventional thinking in terms of regarding mass torts as purely a litigation problem.   It’s not a purely a litigation problem; it’s a problem of administration, it’s a problem of governance, and once you make that shift I think we come to a very different kind of understanding of conflicts of interest.  When we think about representation in more public or political processes, in legislatures and other public mechanisms, there is not this fastidious obsession with avoiding conflicts of interest.  We regard representation as actually a good thing when it encompasses a broad array of interests.  But we also with that impose various sorts of constraints.  Political representatives have to stand for re-election and that’s because they have this sort of ongoing relationship [with their constituents].  Part of what one can see my proposal as doing is trying to move us from the fee mechanism to something like a kind of ongoing relationship that gets away from the current situation where the attorneys can make peace, it’s a one-shot deal, they walk away, they get their money, the defendant may well get some benefits from the settlement but future claimants really are short changed.

Q:    It seems to me that under the current system, there are principally three players:  the plaintiffs’ counsel, the defense counsel, and the judge managing the litigation.  What’s in it for them to change from the current system to your approach?
RN:      I think that my proposal is a proposal that is not going to be palatable to lawyers, because both lawyers on the plaintiffs’ side and lawyers on the defense side understand very well how the existing systems work and can work its dysfunctional features for the benefit of their particular interests.  Courts, I think, are beginning to understand the sort of magnitude of the problem but they are of course quite rightly limited by existing law, and existing procedures.  I think ultimately there has to be some sort of legislative type of push.  Now the important thing that I would say about my proposal is that one, you don’t have to change the entire world, and two, you don’t have to have the federal government dictating the terms of the deal.  What I mean by not changing the entire world is . . . there are particular areas in which we have an existing administrative apparatus. . . .  [P]art of the debate should also involve what responsibilities the agency might have or what role it can in better structuring this bargaining process and that leads to my second point.  That is, I really have a respect for the creativity of attorneys here.  These are complex business deals fundamentally, and I certainly do not think that the government has any business or any real expertise in dictating the precise terms of those deals.  But I do think there is an appropriate role for setting up the bargaining process in a way that gives us much more confidence that the deal making savvy of lawyers will be directed in a way that we would find more socially desirable.

Rodger D. Citron is an assistant professor of law at Touro Law Center.  ADL

Van Houtte & Yi on Mass Claims Relating to Wartime Property Loss

Hans van Houtte (Katholieke Universiteit Leuven) and Iasson Yi have recently posted "Due Process in International Mass Claims" on SSRN.  The article is published in 1 Erasmus Law Review (2008).  The paper catalogs recent settlements of litigation arising out of World War II era claims of lost property and labor.

ADL

Conference: Justice and the Role of Class Actions

Cardozo Law School in New York is hosting a conference on Friday, March 28 entitled "Justice and the Role of Class Actions." The organizers describe the conference as follows:

For too long, coverage of class action litigation has understated or ignored completely the critical role that class actions have played in protecting consumer safety, advancing civil rights, protecting the integrity of the market, and distributing justice. The goal of this conference is to present a series of panels focusing on the historic value of class actions, their contemporary application, as well as the threats and opportunities facing the class action system today and in the future.  The conference, cosponsored with the American Constitution Society for Law and Policy and Public Justice, will bring together a diverse group of scholars, practitioners, and law students to engage in a day-long, interactive set of conversations about class actions and the issues that swirl around this controversial and rapidly changing legal arena.

The speakers list includes some of the most prominent names in class action litigation and scholarship  (listed here in order of appearance): Kenneth Feinberg, Elizabeth Cabraser, Sean Coffey, Geoffrey Miller, Richard Nagareda, John Beisner, Paul Bland, Myriam Gilles, Michael Hausfeld, Samuel Issacharoff, Arthur Bryant, Deborah Hensler, Bill Lann Lee, Catherine Lhamon, Victor Schwartz.

The coverage of the conference is very general (panels are on the history of class actions, challenges facing class actions and globalization of class actions).  There is no specific mass tort angle, at least of the type we often write about on this blog, because class actions have largely been abandoned as a vehicle for resolving mass torts.  Constitutional torts, such as strip search class actions and Title VII class actions, remain viable and will likely be discussed at the conference.

ADL

Second Edition of Mullenix's Mass Tort Litigation Casebook

Professor Linda Mullenix (Texas) is publishing a second edition of her seminal casebook, Mass Tort Litigation: Cases and Materials.  The first edition was published in 1996, and a supplement followed in 2000.  That's quite a while for such a fast-moving field as mass tort litigation, and those of us who teach with the Mullenix text (myself included) will no doubt be opening the arriving casebook box with a kind of Christmas-morning glee.  Indeed, comparing the changes of the two casebooks should provide an interesting history of the development of mass torts -- more on that when it arrives in May.  Here's the release from West publishing:

Mullenix's Mass Tort Litigation: Cases and Materials, Second Edition is publishing in May and will be available for Fall 2008 class adoptions. This edition is updated with materials relating to breast implant litigation, tobacco litigation, and medical device and pharmaceutical litigation, in addition to the seminal cases relating to Agent Orange, Dalkon Shield, DES, and asbestos litigation. The materials demonstrate that the core cases and materials relating to mass tort litigation still remain viable precedents after 25 years and that courts are still struggling to find solutions to the resolution of this complex litigation. The casebook is suitable for advanced courses in tort litigation, complex procedure, class action litigation, and dispute resolution offerings.

BGS

ABA Mass Torts Litigation Committee Winter 2008 Newsletter

The ABA Mass Torts Litigation Committee has posted its Winter 2008 newsletter, which includes the following articles:

Let Data Speak Equally to All: The Increasing Importance of Raw Data in Litigation and a Proposal for Principles Governing the Production, Protection, and Use of Raw Data in the Litigation Context, by Laura Ellsworth, Charles Moellenberg, and Neelie Simmons (all of Jones Day);

Don't Step on My Toes -- The Use of The Doctrine of Primary Jurisdiction as a "Defense" in Tort Litigation, by Katherine Winchester (Ice Miller);

Blogging 101: An Interview with Mark Herrmann and James Beck of the "Drug and Device Blog," interviewed by Eric Hudson (Butler Snow) and Harley Ratliff (Shook, Hardy); and

State ex. rel. Johnson & Johnson v. Karl: Is the Learned Intermediary Doctrine Outdated?, by John Camp and Gary Pappas (both of Carlton Fields).

BGS

Asbestos and Mass Torts with Fraudulent Victims

Keith Hylton (Boston University) has posted his piece, Asbestos and Mass Torts with Fraudulent Victims, on SSRN.  This piece was part of Southwestern's Perspectives on Asbestos Litigation Symposium.  Here's the abstract:

Deterrence and compensation goals should be distinguished, and compensation priorities should change in response to the deterrence goal. This has immediate implications for the problem of handling marginal and fraudulent claims in asbestos litigation. Where the deterrence goals come to the forefront, for example in instances of reckless exposure, it may be desirable for courts to require defendants to pay damages that are not transferred to any claimants. Where the deterrence goals are less compelling, as in instances of ordinary negligence, the importance of weeding out marginal and fraudulent claims becomes paramount. I consider optimal penalties for attorneys who bundle fraudulent claims.

ECB