Tuesday, September 3, 2013

Jennifer Robbennolt on the Effects of Negotiated and Delegated Apologies in Settlement Negotiation

Professor Jennifer Robbennolt (Illinois) has posted to SSRN her article, The Effects of Negotiated and Delegated Apologies in Settlement Negotiation, 37 Law & Hum. Behav. 128 (2013).  Here's the abstract:

Previous work has explored the influence that apologies have on the settlement of civil legal disputes. This study explored 2 aspects of apologies that commonly arise in the legal setting — the fact that many apologies may be negotiated with or requested from a wrongdoer in the context of settlement discussions and the possibility that an apology may be offered by a wrongdoer’s attorney rather than personally by the offender. In general, apologies given following a negligent action were found to improve perceptions of the offender and the situation. Full apologies that were given in response to a request by the injured party or at the suggestion of a mediator were viewed in ways that were similar to the same apology given spontaneously. On the other hand, full apologies that were offered by an attorney on behalf of the wrongdoer, although improving perceptions somewhat, were less effective than apologies offered directly by the wrongdoer. The motives attributed to the apologizer and general attitudes toward the civil litigation system also influenced perceptions of apologies.

BGS

September 3, 2013 in Mass Tort Scholarship, Settlement | Permalink | Comments (0) | TrackBack (0)

Jill Wieber Lens on a Defendant's Accuracy-Based Right to Present Defenses

Professor Jill Wieber Lens (Baylor) has posted to SSRN her article, No Matter the Enormous Cost: A Defendant's Accuracy-Based Right to Present Defenses.  Here's the abstract:

The Supreme Court has held that a plaintiff has a due process right to her day in court. The right is grounded in a process-based theory of procedural due process, which values litigant participation intrinsically. The defendants in Philip Morris USA v. Williams and Wal-Mart Stores, Inc. v. Dukes claimed something similar — a right to present defenses. The Court recognized that right in both cases, stating that a defendant could not be punished for harming nonparties or be forced to pay damages to a class action plaintiff without being provided the opportunity to present defenses specific to the nonparties and absent plaintiffs.

The cases are significant not because the Court found the right, but how it did so — relying on an outcome-based theory of procedural due process, under which procedures are necessary to achieve accurate results. The pursuit of accuracy is alarmingly uncompromising. Only the accuracy resulting from individualized proceedings was acceptable. And the Court required individualized proceedings despite the costs — unpunished defendants, with little incentive to alter their behavior, and uncompensated, injured plaintiffs. But the Court did not weigh the costs and instead focused on increasing accuracy even though perfect accuracy can never be achieved. The cases pave the way for an absurdly broad, outcome-based right to day in court for defendants.

BGS

 

 

September 3, 2013 in Mass Tort Scholarship, Procedure | Permalink | Comments (0) | TrackBack (0)

Andrew Gold on Selling Civil Recourse

Professor Andrew S. Gold (DePaul) has posted to SSRN his article, On Selling Civil Recourse, DePaul L. Rev. (forthcoming).  Here's the abstract:

This Essay is a contribution to the 19th Annual Clifford Symposium on Tort Law and Social Policy. The focus of the Essay is on the alienability of legal claims. Debates over alienability often emphasize questions of commodification or efficiency, yet there are also interesting remedial implications. Drawing on insights from civil recourse theory, I will argue that some remedies may cease to be apt once a claim has been transferred. For example, apologies may no longer make sense if their recipient is not the party who was wronged, or someone affiliated with that party. Apologies are admittedly not a core remedy in tort law. But similar concerns may arise with respect to punitive damages, particularly if those damages have an expressive component, or are taken to provide a type of private revenge. More broadly, if civil recourse theorists are correct that private rights of action provide a type of accountability, or a mode of “getting satisfaction”, many tort law remedies may have a different meaning post-transfer. This Essay will explore these concerns and suggest several potential responses to them.

BGS

September 3, 2013 in Mass Tort Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, August 30, 2013

BP Looking to Exit Gulf Settlement

According to a news report, BP today asked the Fifth Circuit to reverse the district court's approval of the Gulf oil spill settlement. I have not seen the court filing, but according to this AP report as published by the NY Times, "BP is trying to persuade a federal appeals court that it should throw out a judge's approval of the company's multibillion-dollar settlement with Gulf Coast residents and businesses. Last year, BP PLC joined plaintiffs' attorneys in urging U.S. District Judge Carl Barbier to give the deal his final approval. On Friday, however, the company's lawyers argued in a court filing that Barbier's more recent interpretation of settlement terms have allowed businesses to receive hundreds of millions of dollars for inflated or fictitious claims." As told in the Houston Chronicle, BP would still support the settlement if the Fifth Circuit were to decide in BP's favor on its earlier appeal challenging Judge Barbier's rulings on the generosity of payouts.

BP's decision to ask for reversal of its settlement class action (a deal that BP had negotiated and agreed to, and for which BP had previously argued in favor of judicial approval), is a fascinating turn of events in light of the history of the Gulf Oil Spill litigation and settlement. Shortly after the Deepwater Horizon explosion, BP established a compensation fund to pay claims. Kenneth Feinberg was named administrator of the fund, which came to be knows as the Gulf Coast Claims Facility (GCCF), and the GCCF proceeded to settle thousands of claims. But BP later joined with a group of plaintiffs' lawyers to negotiate a settlement class action that would replace the GCCF as settlement mechanism. For BP, a settlement class action offered a greater prospect of finality because it could bind all class members who fail to opt out, whereas the GCCF settlement program could bind only those claimants who chose to accept their compensation offers. In other words, even though the claims systems strongly resembled each other, a key difference is that a settlement class action uses the adjudicative power of the court to bind class members, in contrast to the claims facility, which depended upon the consent of individual claimants to settle their claims.

I've argued elsewhere that settlement class actions should be impermissible because they use the power of the courts to disadvantage claimants. But the BP news drives home the point that the opposite problem can occur -- a defendant may feel disadvantaged by a settlement class action because it deprives the defendant of control over the settlement process.

HME 

 

August 30, 2013 in Class Actions, Environmental Torts, Settlement | Permalink | Comments (0) | TrackBack (0)

Thursday, August 22, 2013

In Memorium: Ronald L. Mottley (1944-2013)

Famed mass tort plaintiffs' lawyer Ron Mottley has passed away, according to an announcement today on the Mottley Rice firm website by his partner Joe Rice. Mottley played a leading role in many of the biggest mass torts -- asbestos, tobacco, 9/11, Gulf oil spill, and lead paint, to name a few. I knew him only from accounts of his work and from reading about him in various books on the tobacco litigation and other mass tort wars. He was known not only for his legal skill and tenacity, but also for his outsized personality and lifestyle. Dionne Searcey at the WSJ law blog describes Mottley as "the gregarious, hard-charging and hard-living attorney who was known for his compassion for victims of corporate wrongdoing."

HME

Update: here's a link to the New York Times article

ECB

August 22, 2013 in 9/11, Asbestos, Avandia, Lawyers, Lead Paint, Tobacco | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 21, 2013

Kate Greenwood on Litigant Regulation of Physician Conflicts of Interest

Professor Kate Greenwood (Seton Hall) has posted to SSRN her article, 'Litigant Regulation' of Physician Conflicts of Interest, Ga. St. L. Rev. (forthcoming).  Here's the abstract:

While physicians’ financial relationships with pharmaceutical and medical device manufacturers are increasingly of concern to legislators and regulators, plaintiffs have had only limited success pursuing private law remedies for the harms that result from conflicts of interest. Courts have long channeled individual patients’ claims against their conflicted doctors into the medical malpractice cause of action, where patients have difficulty establishing that their physicians’ conflicts caused them to suffer concrete and compensable injuries. With recent notable exceptions, courts have also blocked patients’ claims against drug and device manufacturers. Courts apply the learned intermediary doctrine to dispose of failure-to-warn personal injury suits, without regard to whether the plaintiff’s physician had a financial relationship with the defendant manufacturer. Third-party payers, such as employers, insurance companies, and union health and welfare funds, have similarly struggled to overcome a strong presumption of physician independence. Courts routinely find that a physician’s prescribing decision breaks the chain of causation between a manufacturer’s illegal promotional efforts and a payer’s obligation to pay for a prescription, even when those promotional efforts include the payment of kickbacks.  

Courts can and should move beyond the often counterfactual presumption of physician independence. In personal injury cases, this can be achieved through a nuanced analysis of alleged conflicts of interest that distinguishes between kickbacks, on the one hand, and legitimate financial relationships between manufacturers and physicians, on the other. Limited early discovery would allow plaintiffs to develop their claims about the influence of conflicts on their physicians’ decision-making without putting an undue burden on defendants. In economic injury cases, courts can move beyond the presumption of physician independence by allowing plaintiffs to use standard statistical methods to demonstrate that physicians’ prescribing decisions were not independent in the aggregate. If the doctrine were to evolve in these ways, it would amplify the role “litigant regulation” plays in the regulatory structure governing physician-industry relationships and bring closer the goal of ensuring that patients and payers are fairly compensated for the harms caused by conflicts of interest.

BGS

August 21, 2013 in Ethics, Mass Tort Scholarship, Pharmaceuticals - Misc., Regulation | Permalink | Comments (0) | TrackBack (0)

Adam Abelkop on Tort Law as Environmental Policy Instrument

Adam Abelkop (Graduate Student, Indiana U., Bloomington, School of Public & Environmental Affairs) has posted to SSRN his article, Tort Law as an Environmental Policy Instrument, 92 Or. L. Rev. (forthcoming 2013).  Here's the abstract:

Policymakers aiming to tackle any environmental problem have a diverse tool chest of policy instruments at their disposal, including command and control regulations, taxes, marketable allowance, and liability entitlements. Scholars of public health and safety have been debating the effectiveness of tort law as a regulatory tool for decades. The legal literature on this topic, though, is muddled because the field has failed to adopt a set of criteria by which to compare tort law to public regulation. Heightened clarity on the usefulness of tort law as a complementary policy instrument to public regulations may have legal and policy implications. This article therefore adopts evaluation criteria from the policy analysis and public policy fields — equity, legitimacy, efficiency, organizational competence, effectiveness, and cost-effectiveness — to evaluate the strengths and weaknesses of tort law as an environmental policy instrument relative to public regulation.

BGS

August 21, 2013 in Environmental Torts, Mass Tort Scholarship, Regulation | Permalink | Comments (0) | TrackBack (0)

Monday, August 19, 2013

Supreme Court Petition in Engle Progeny Case

Am Law Litigation Daily has an article on the tobacco companies' filing another certiorari petition in an Engle progeny case: Tobacco Companies Seek Supreme Court Cert in Engle Case, by Ross Todd.  Here's their petition for a writ of certiorari.  The appellate team includes Greg Katsas (Jones Day), Paul Clement (Bancroft), and Miguel Estrada (Gibson Dunn).

I've previously addressed issue preclusion, verdict variability, and problems with the Engle case in my article, Jackpot Justice: Verdict Variability and the Mass Tort Class Action, 80 Temp. L. Rev. 1013 (2007).

BGS

August 19, 2013 in Aggregate Litigation Procedures, Class Actions, Procedure, Products Liability, Tobacco | Permalink | Comments (0) | TrackBack (0)

Richard Zitrin on Regulating the Behavior of Lawyers in Mass Individual Representations

Professor Richard Zitrin (UC Hastings) has posted to SSRN his article, Regulating the Behavior of Lawyers in Mass Individual Representations: A Call for Reform, 3 St. Mary’s J. on Legal Malpractice & Ethics 86 (2013).  Here's the abstract:

Cases in which lawyers represent large numbers of individual plaintiffs are increasingly common. While these cases have some of the indicia of class actions, they are not class actions, usually because there are no common damages, but rather individual representations on a mass scale. Current ethics rules do not provide adequate guidance for even the most ethical lawyers. The absence of sufficiently flexible, practical ethical rules has become an open invitation for less-ethical attorneys to abuse, often severely, the mass-representation framework by abrogating individual clients’ rights. These problems can be abated if the ethics rules offered better practical solutions to the mass-representation problem. It is necessary to reform the current rules, but only with a solution that is both practical and attainable, and with changes that maintain the core ethical and fiduciary duties owed by lawyers to their individual clients, including loyalty, candor, and independent professional advice.

BGS

August 19, 2013 in Aggregate Litigation Procedures, Ethics, Mass Tort Scholarship | Permalink | Comments (0) | TrackBack (0)

The Spread of Class Actions in Europe

The Wall Street Journal has an article on the spread of class actions and collective litigation in Europe: Europe Walks Fine Line in Pursuing Class Actions, by Naftali Bendavid.

BGS

August 19, 2013 in Class Actions, Foreign, Procedure | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 13, 2013

Cy Pres Settlements Upstream

Adap Liptak of the NYTimes has a piece When Lawyers Cut Their Clients Out of the Deal about a cy pres settlement with Facebook.  In this settlement (approved by the 9th Circuit) the lawyers got $2.3 million and the clients got a cy pres contribution, apparently $6.5 million to a foundation over which Facebook has some control according to the article.  The cy pres recipient is something called the Digital Trust Foundation.  A quick google search came up with a bunch of references to the Facebook settlement but no website for this foundation. 

The Ninth Circuit affirmed the settlement and denied rehearing en banc, with a dissent on rehearing en banc, making this a possible Supeme Court cert grant.  (A cert petition was filed on June 26, 2013). 

There is a lot of scholarship on the topic of how much lawyers should be paid relative to class members as well as articles critizing cy pres settlements.  Some links to this work are below. The problem is this.  We regulate entities like Facebook largely by litigation.  In the absence of the class action, there would be little or no enforcement of the consumer protection laws.  But the class action litigation needs to be funded, and it is funded out of lawyers percentage of the total fund, usually the total fund from a settlement because class actions are almost never litigated.  Its very hard to certify a class action, so class actions are often certified for settlement only.  The incentive of the lawyers, fearing no class certification or realistic possibility of actually litigating, is to settle.  The incentives for defendants, wanting to get the litigation off their books, is to settle cheap.  The answer to this problem in my view is to allow classes to be litigated, not to tighten the certification standards further.

If the settlement will deter future misconduct, even if the money doesn't go directly to the class members, there is still a lot of societal value there.  But is $8.8 million enough to deter Facebook? Does it have any relationship to the potential value of this lawsuit?  That is, what is the value of the claims multiplied by the probability of success? 

In my own work, I've suggested that cy pres settlements are not necessarily bad, but that certainly doesn't mean they are always good.  Class members should just be polled in determining where cy pres settlements should go.  The argument that class members will not appreciate the putative $1 (I think I saw it was $1.12) they would get in a settlement like this one is reasonable.  But that doesn't make a settlement like this one okay.  Especially in a settlement involving facebook users, who presumably are all connected via facebook, there is no reason why absent class members cannot be polled. Do they "like" this foundation?  what would they prefer?   Might I suggest Public Citizen as a recipient?   

This case might be a fine vehicle for the Supreme Court to consider cy pres settlements. Given how few cases the Court decides, how few class actions actually are filed and litigated (less than 1% of the federal docket) its not clear to me that this is the best use of its time.  That said, if the Court does grant cert, it would be wise to consider both the overall benefits and costs of cy pres to consumers and society more generally, not merely the fact that the lawyers got a lot of money here.  This is a story of more money than sense. 

ADL

Some links:

Cert Petition

Center for Class Action Fairness

Lahav, Two Views of the Class Action (advocating polling)

Gilles & Friedman, Exploding the Class Action Agency Costs Myth (SSRN)

Fitzpatrick, Do Class Action Lawyers Make Too Little? (SSRN) 

Redish et. al., Cy Pres Relief and the Pathologies of the Modern Class Action (SSRN)

 

 

 

 

 

 

August 13, 2013 in Class Actions, Lawyers, Procedure, Settlement | Permalink | Comments (0) | TrackBack (0)

Monday, July 22, 2013

IAPL Moscow Conference Papers

The presentatons from the 2012 Moscow meeting of the International Association of Procedural Law have been posted to SSRN as a combined UC Irvine Law research paper entitled, Civil Procedure in Cross-Cultural Dialogue: Eurasia Context.  Among the many professors whose papers are gathered are Carrie Menkel-Meadow (UC Irvine), Richard Marcus (UC Hastings), Stefaan Voet (Univ. of Ghent), and Jasminka Kalajdzic (Univ. of WIndsor).  Here's the abstract:

The Idea of the book is to discuss the evolution of civil procedure in different societies, not only in the well-known civil or common law systems, but also in different countries of Eurasia, Asia, etc. Civil procedure in Europe and North America is a subject of enormous scientific and practical importance. We know a lot about these systems. But we do not know enough about civil procedure in the rest of the world. How does it work and what are the main principles? Culture is one of the main factors that makes civil procedure of these countries different. Therefore it is necessary to discuss the main links between different systems of civil procedure. The discussion was held on the basis of National reports from 24 countries.

BGS

July 22, 2013 in Aggregate Litigation Procedures, Class Actions, Foreign, Mass Tort Scholarship, Procedure | Permalink | Comments (0) | TrackBack (0)

Sunday, July 21, 2013

Khoury, Menard & Redko on the Role of Canadian Private Law in the Control of Risks Associated with Tobacco Smoking

Professors Lara Khoury and Marie-Eve Couture-Ménard (McGill), and Olga Redko (LL.B./B.C.L. Candidate, McGill) have posted to SSRN their article, The Role of Private Law in the Control of Risks Associated with Tobacco Smoking: The Canadian Experience, 39 Am. J. L., Med. & Ethics 442 (2013).  Here's the abstract:

Can private law litigation serve as a tool for advancing public health objectives? With this contentious and oft-asked question in mind, this text tackles Canada’s recent tobacco litigation. This Article first presents critical commentary regarding various lawsuits waged against Canadian cigarette manufacturers by citizens acting as individuals or as parties to class action lawsuits. We then turn to analyze how Canada’s provincial governments rely on targeted legislation to facilitate private law recourses for recouping the healthcare costs of treating tobacco-related diseases. The authors address challenges to the constitutionality of this type of legislation, as well as attempts by manufacturers to transfer responsibility to the federal government.

BGS

July 21, 2013 in Aggregate Litigation Procedures, Class Actions, Mass Tort Scholarship, Procedure, Products Liability, Tobacco | Permalink | Comments (0) | TrackBack (0)

Sunday, July 14, 2013

Paul McMahon on Proceduralism, Civil Justice, and American Legal Thought

Professor Paul McMahon (Harvard) has posted to SSRN his article, Proceduralism, Civil Justice, and American Legal Thought, 34 U. Pa. J. Int'l L. (forthcoming).  Here's the abstract:

American legal scholars spend a large proportion of their time debating and theorizing procedure. This Article focuses on American proceduralism in the particular field of civil justice and undertakes a detailed comparison with England, where procedural questions receive little academic attention. It finds that procedure is more prominent in America partly because Americans have been more willing than others to use private litigation as a tool for regulation. More significantly, procedural questions necessarily occupy more space in American debates because authority over civil justice is unusually dispersed among different actors; procedural rules allocate power among these actors. But American proceduralism runs deeper than these surface explanations allow, and a full account requires an examination of the history of American legal thought. I trace contemporary American proceduralism to a counter-intuitive source: the emergence of Legal Realism in the 1920s and 1930s.

BGS

July 14, 2013 in Mass Tort Scholarship, Procedure | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 3, 2013

Justice Kagan Interview

You can find an interview with Justice Kagan here.  

 

At around 20:52 you can see her speaking about Italian Colors and then whether this is a pro-business Supreme Court.

Note the caveat then the description and what looks like a "yes".  She says:

"None of us decide cases based on who the parties are.  Its not like the Chamber of Commerce appears in court and you say I like the Chamber of Commerce...or a consumer appears in court and you say I like consumers or they need more protection or they don't.  I mean, I think people look at the individual cases before them.  But I do think in a number of cases with respect to a number of areas of law there is a majority of the court that has a set of legal views that, you know, provide some significant relief from both federal and state regulation to businesses.  So if you look at just even the last couple of weeks of the term there were a couple of cases in which the Court very restrictively read anti-discrimination laws, made it harder to bring anti-discrimination suits.  There was another case where the Court made it harder for local governments to put conditions on development permits or to do environmental mitigation of some kinds.  There was another case where people made it -- where the Court made  it -- much harder for injured plaintiffs who have had terrible reactions to various kinds of pharmaceutical drugs to sue for injury.  So I think there were a number of cases where the Court made it more difficult for injured persons to come to court and to use federal and state law to hold business to account for injuries that they've done."

At 31.09 Toobin asks her about public opinion's effect on the Court - do they read polls?  Her answer, not really any more enlightening than you'd think it would be:

"I don't think we read polls like that and I don't think polls influence what we do, but you know, on the other hand, we live in a world and I think...all of us are products of that world and understand things that are going on with it.  And I think it would just not be right to say that the trends in what people think and societal attitudes don't affect what the Court does."

ADL

July 3, 2013 in Current Affairs, Preemption | Permalink | Comments (0) | TrackBack (0)

Thursday, May 23, 2013

Lawyering for Groups

The papers from the Fordham Law Review Symposium Lawyering for Groups are now online.

Howard Erichson & Ben Zipursky wrote the Foreword.

Other contributors include.....

Elizabeth Burch, Adquately Representing Groups

Kristen Carpenter & Eli Wald, Lawyering for Groups: The Case of American Indian Tibal Attorneys

Samuel Issacharoff, The Governance Problem in Aggregate Litigation

Alexandra Lahav, The Political Justification for Group Litigation

Troy McKenzie, "Helpless" Groups

Nancy Moore, Ethical Issues in Mass Tort Plaintiffs' Representation: Beyond the Aggregate Settlement Rule

ADL

 

 

 

 

 

 

 

 

May 23, 2013 in Ethics, Mass Tort Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 15, 2013

Distributive Justice in Action

There is a very nice, lauditory article on Kenneth Feinberg in the New York Times today: "One Man Disperses Charity After Tragedy in Boston."

The interesting thing about the compensation funds Feinberg is often asked to run are the way they bring distributive justice issues that are always imbedded in tort litigation to the surface.  How should people with similar injuries be compensated when they have different life circumstances?  Should weathier people receive less (or more) compensation than poorer people with similar injuries?  Should emotional harm be compensated?  What about fraud, the flip side of desert?  These questions arise in ordinary tort litigation and in mass tort litigation as well.  What any fund, whether created by an insurance company, a mass tort litigation, a charitable foundation or the government can do that ordinary decentralized tort litigation cannot is treat similarly situated people equally, which is the promise of the common law maxim that like cases ought to be treated alike and the foundation of the rule of law.  But that raises difficult questions about what it means to treat people alike who are different from one another but suffered similar injuries. 

Perhaps because these funds aren't governed by legal prinicples but instead by charitable ones, the issues of distributive justice, luck and social inequality are easier to discuss.  There is no legally imposed baseline of how compensation is to be awarded, so this opens up our thinking about how things ought to be.  These are the fundamental philosophical issues of tort law in the United States, and decision-maker's philosophy affects how the law and non-legal funds (like the One Fund Boston) operate in real life.  Should these funds track the tort system?  The 9/11 fund kind of did (not completely), and in his book "What is Life Worth?" Feinberg notes that he would have preferred to pay everyone a flat amount rather than distinguish based on earning capacity and other factors that end up reflecting societal inequalities.  The tort system presently often reinforces existing social inequalities in compensation, should it?  Similarly, as PTSD on the military side has become more recognized as disabling, will we reach a point where emotional trauma receives more recognition on the civil justice side as well? 

Also notable, the article points out that the number of funds has accelerated in the 21st century.  According to the article, between 1984 and 2010 Feinberg worked on five such funds, since then he's worked on five more.  

ADL

May 15, 2013 in Aggregate Litigation Procedures, Current Affairs, Informal Aggregation, Mass Tort Scholarship | Permalink | Comments (0) | TrackBack (0)

Distributive Justice in Action

There is a very nice, lauditory article on Kenneth Feinberg in the New York Times today: "One Man Disperses Charity After Tragedy in Boston."

The interesting thing about the compensation funds Feinberg is often asked to run are the way they bring distributive justice issues that are always imbedded in tort litigation to the surface.  How should people with similar injuries be compensated when they have different life circumstances?  Should weathier people receive less (or more) compensation than poorer people with similar injuries?  Should emotional harm be compensated?  What about fraud, the flip side of desert?  These questions arise in ordinary tort litigation and in mass tort litigation as well.  What any fund, whether created by an insurance company, a mass tort litigation, a charitable foundation or the government can do that ordinary decentralized tort litigation cannot is treat similarly situated people equally, which is the promise of the common law maxim that like cases ought to be treated alike and the foundation of the rule of law.  But that raises difficult questions about what it means to treat people alike who are different from one another but suffered similar injuries. 

Perhaps because these funds aren't governed by legal prinicples but instead by charitable ones, the issues of distributive justice, luck and social inequality are easier to discuss.  There is no legally imposed baseline of how compensation is to be awarded, so this opens up our thinking about how things ought to be.  These are the fundamental philosophical issues of tort law in the United States, and decision-maker's philosophy affects how the law and non-legal funds (like the One Fund Boston) operate in real life.  Should these funds track the tort system?  The 9/11 fund kind of did (not completely), and in his book "What is Life Worth?" Feinberg notes that he would have preferred to pay everyone a flat amount rather than distinguish based on earning capacity and other factors that end up reflecting societal inequalities.  The tort system presently often reinforces existing social inequalities in compensation, should it?  Similarly, as PTSD on the military side has become more recognized as disabling, will we reach a point where emotional trauma receives more recognition on the civil justice side as well? 

Also notable, the article points out that the number of funds has accelerated in the 21st century.  According to the article, between 1984 and 2010 Feinberg worked on five such funds, since then he's worked on five more.  

ADL

May 15, 2013 in Aggregate Litigation Procedures, Current Affairs, Informal Aggregation, Mass Tort Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, April 29, 2013

Engle's Progeny March On

Earlier this month two tobacco trials with origins in the Florida Supreme Court's affirmation of classwide issue preclusion in Engle resulted in large awards. 

Searcy v. R.J. Reynolds Tobacco Co., M.D. Fla., No. 3:09-cv-13723, verdict rendered 4/1/13.  26 million.

Aycock v. R.J. Reynolds Tobacco Co., M.D. Fla., No. 3:09-cv-10928, verdict rendered 4/18/13.  5.6 million.
Juries found comparative negligence on the part of smokers in both cases.  See BNA Class Action Reporter for analysis and details.
ADL

April 29, 2013 in Tobacco | Permalink | Comments (0) | TrackBack (0)

Thursday, April 25, 2013

One Fund Boston

Over at the Conglomerate Blog, Christine Hurt has a great post on the One Fund Boston and individual victim fundraising.  Her blog post is entitled One Fund Boston, Torts and Social Capital.

ADL

 

April 25, 2013 in Informal Aggregation, Mass Disasters, Resources - Other Blogs of Interest, Weblogs | Permalink | Comments (0) | TrackBack (0)