Monday, October 12, 2015
Professor Christopher Hodges (Oxford) has posted to SSRN his research paper, US Class Actions: Promise and Reality, EUI Department of Law Research Paper No. 2015/36. Here's the abstract:
The US class action is the best-known tool of civil procedure for enforcement of mass private rights. It is intended to achieve judicial and procedural economy in civil procedure, and to exert significant pressure on corporate defendants to observe the law. This piece summarises the major empirical evidence on how the mechanism works. It confirms extensive enforcement of law. It also identifies issues of selectivity of case types (especially securities cases brought by investors), high transactional costs and reductions in sums received by claimants, the risk that high economic factors distort the legal merits of settlements, the limited evidence on evaluating the legal merits of outcomes, forum shopping, and aspects of conflicts of interest that have been criticised by European politicians as abusive. The piece notes that these features are predictable consequences of the policy of encouraging widespread private enforcement of law by incentivising intermediaries and reducing risk to claimants. Various questions are noted in relation to the future of collective redress in the different context of the European legal order.
Professor Benjamin Zipursky (Fordham) has posted to SSRN his article, Reasonableness In and Out of Negligence Law, 163 U. Pa. L. Rev. 2131 (2015). Here's the abstract:
The word “reasonable” and its cognates figure prominently in innumerable areas of the law – from antitrust and contract law to administrative and constitutional law, from the common law of nuisance to an assortment of rules in statutes and regulations. While some thinkers have equated “reasonableness” with “rationality,” others have looked to “justifiability,” and others still have decided that “reasonableness” means virtually nothing at all, but serves the important function of allocating decisionmaking authority. The reality is that the term “reasonable” is both vague and ambiguous, and thus plays many different roles in the law. As with terms such as “rights” and “responsibility,” we will benefit from an analysis of “reasonable” that admits that different meanings take center stage in different legal contexts. This broad, ‘varietal’ analysis of reasonableness in the law comprises the first half of the article.
Turning to negligence law, the second half of the article offers a broad critique of the Hand formula conception of reasonableness. The article criticizes both the Posnerian/economic interpretation of the Hand formula and the more basic idea (in the Restatement (First)) that the “unreasonableness” of risk is the core of negligence law. The breach element of negligence law is focused first and foremost not on a level of risk but on a kind of person – a reasonably prudent person or a reasonable person. By attending closely to the role of reasonableness concepts in various aspects of negligence doctrine, and comparing them to reasonableness concepts in other parts of the law, the article constructs and defends a “moderation and mutuality” conception of reasonableness in negligence law.
Sunday, October 11, 2015
Professor David Bernstein (George Mason) and Eric Lasker (Hollingsworth) have posted to SSRN their article, Defending Daubert: It's Time to Amend Federal Rule of Evidence 702, 57 Wm. & Mary L. Rev. 1 (2015). Here's the abstract:
The 2000 amendments to Rule 702 sought to resolve the debate that had emerged in the courts in the 1990s over the proper meaning of Daubert by codifying the rigorous and structured approach to expert admissibility announced in the Daubert trilogy. Fifteen years later, however, the amendments have only partially accomplished this objective. Many courts continue to resist the judiciary’s proper gatekeeping role, either by ignoring Rule 702's mandate altogether or by aggressively reinterpreting the Rule’s provisions.
Informed by this additional history of recalcitrance, the time has come for the Judicial Conference to return to the drafting table and finish the job it began in 2000. Rule 702 should be amended to secure the promise of Daubert and effectively protect future litigants and juries from the powerful and quite misleading impact of unreliable expert testimony.
Sunday, September 27, 2015
Amanda Bronstad at the National Law Journal recently published an article titled Good Ol' Boys Clubs in MDL that includes a list of law firms that I recently identified as firms with the most lawyers appointed to leadership positions in products liability MDLs. Given the title of her piece, I thought readers might also be interested in the gender breakdown of lead lawyers in those multidistrict litigation cases. Of the top fifty lawyers who were appointed most frequently, only 11 of the 50, or approximately 22% were female. The full list of those attorneys is available in Judging Multidistrict Litigation, 90 N.Y.U. L. Rev. 71, 139-40 (2015) (gender breakdowns are mentioned in footnoted 102).
Wednesday, September 23, 2015
Harvard Business Review has a an article, What VW Didn't Understand About Trust, by Andrew Wilson. As perhaps occurred in the Toyota Unintended Acceleration Litigation, VW may be motivated to settle somewhat swiftly any civil litigation or regulatory or criminal inquiries and fines, as part of a larger strategy to regain the public's trust and preserve its brand.
Monday, September 14, 2015
Professor David Logan (Roger Williams) has posted to SSRN his article, Judges, Juries, and the Politics of Tort Reform, 83 U. Cin. L. Rev. 903 (2015). Here's the abstract:
The civil justice system has many repeat players with a deep interest in the civil justice system because they are often the target of personal injury lawsuits, most prominently product manufacturers and physicians, and the companies that insure them. Following a blueprint drafted by leading corporate lawyer Lewis Powell, prior to his appointment to the Supreme Court of the United States, these deep pocket interests have spent four decades and tens of millions of dollars maligning the civil jury and trying, with notable success, to influence legislators, administrators, and judges, both state and federal, under the catchy, but misleading banner of “tort reform.” These campaigns have been amplified by media coverage of the civil justice system that has been unsophisticated, and at times misleading.
This article argues that separation of powers concerns counsel that we should be cautious about constricting the role of the jury, one of our most democratic institutions. Juries provide checks and balances on government; juries are independent; juries bring community values into the judicial system; juries are fair; juries legitimatize the civil justice system; and, juries generally “get it right.”
Instead of draconian reforms like damage caps, the article argues for the primacy of judges when adjustments to the civil justice system are called for. Judges bring legal experience and knowledge not shared by most legislators and administrators; the nature of the judicial process makes judges predictable and their work transparent; judges are far less likely to be “captured” by special interests than legislators and administrators; and state judges have the best perspective of how the civil justice system works and are thus in the best position to implement reforms when necessary.
The article concludes with a survey of various tools, some time-tested and others novel, by which judges can oversee the work of juries, and the civil justice system more generally.
Professor Howard Erichson (Fordham Law and Editor, Mass Tort Litigation Blog) has posted to SSRN his article, Judge Jack Weinstein and the Allure of Antiproceduralism, 64 DePaul L. Rev. 393 (2015). Here's the abstract:
In one sense of the word proceduralist — a person with expertise in procedure — Judge Jack Weinstein is among the leading proceduralists on the federal bench. But in another sense of the word proceduralist — an adherent of proceduralism, or faithfulness to established procedures — he falls at a different end of the spectrum. Looking at four examples of Judge Weinstein’s work in mass litigation, this Article considers what it means to be an antiproceduralist, someone unwilling to let procedural niceties stand in the way of substantive justice. The allure of antiproceduralism is that it eschews technicalities in favor of substantive justice, but technicalities are in the eye of the beholder, and this Article asks what is lost when a judge steers around procedural constraints.
Saturday, September 12, 2015
Vanderbilt Law School has issued its call for papers for the 2016 New Voices in Civil Justice Scholarship Workshop. Alexi, Sergio, and I have all attended these in the past and can attest that it's a great way to get feedback from senior scholars in the field. More information is available here.
Tuesday, August 18, 2015
Daniel Fisher at Forbes has an article, Investing In Lawsuits Is Heating Up, Aided By Electronic Platform, discussing LexShares.
Saturday, August 15, 2015
The University of Haifa in Israel is hosting an international conference on the Legal Resolution of Mass Disputes on November 26-27, 2015. The conference includes a remarkable gathering of speakers from numerous countries. Participating academic speakers include the following: Dean Gad Barzilai (U. Haifa) and Professors Arthur Miller (NYU Law), Christopher Hodges (Oxford U.), Alon Klement (IDC Herzliya), Geraint Howells (City U. of Hong Kong), Stefaan Voet (U. Leuven), Willem Van Boom (U. Leiden), Astrid Stadler (Konstanz U.), Rhonda Wasserman (U. Pittsburgh), Rabeea Assy (U. Haifa), Ariel Flavian (U. Haifa), Morris Ratner (UC Hastings), Orna Rabinovich Einy (U. Haifa), Linda Mullenix (U. Texas), and Hélène van Lith (Sciences Po Law Paris).
Monday, June 8, 2015
The Supreme Court this morning granted certiorari in Tyson Foods v. Bouaphakeo. The questions presented are:
(1) Whether differences among individual class members may be ignored and a class action certified under Federal Rule of Civil Procedure 23(b)(3), or a collective action certified under the Fair Labor Standards Act, where liability and damages will be determined with statistical techniques that presume all class members are identical to the average observed in a sample; and (2) whether a class action may be certified or maintained under Rule 23(b)(3), or a collective action certified or maintained under the Fair Labor Standards Act, when the class contains hundreds of members who were not injured and have no legal right to any damages.
You can find more information on the case at SCOTUSBLOG.
Tuesday, May 19, 2015
Adam Zimmerman has written a really interesting post on the legacy of the 9/11 Victim Compensation Fund and the subsequent litigation over the 9/11 attack. He focuses on the rise of databases and registries designed to improve the disposition of individual claims. The post can be found here, and Adam will continue to blog at Prawfsblawg for the rest of the month.
Monday, May 18, 2015
The Supreme Court has just granted cert in Campbell-Ewald Company v. Gomez on the following questions, the first two being relevant to an important ongoing circuit split in class action law:
(1) Whether a case becomes moot, and thus beyond the judicial power of Article III, when the plaintiff receives an offer of complete relief on his claim; (2) whether the answer to the first question is any different when the plaintiff has asserted a class claim under Federal Rule of Civil Procedure 23, but receives an offer of complete relief before any class is certified; and (3) whether the doctrine of derivative sovereign immunity recognized in Yearsley v. W.A. Ross Construction Co., for government contractors is restricted to claims arising out of property damage caused by public works projects.
You can find more on SCOTUSBLOG. It used to be that the courts understood that a person purporting to represent a class had a special duty to that class - an ethical duty - to pursue the claims with fidelity to the other class members. This is why courts ask whether a class member is typical of other class members and adequate to represent them. A class member who is offered a personal settlement and refuses it so that he can represent his fellows is following through on that duty to the rest of the class members. It also used to be that the courts appreciated that some people bring suits for vindication or to change the law, even if they will only receive nominal damages. An offer of settlement does not achieve these things - it cannot achieve them - because vindication and legal effect requires a judge to issue a judgment, which only a court can issue. In other words, an offer of full compensation is not full relief, because it does not include a judgment. Most people still prefer a guarantee of compensation to an uncertain outcome in a judgment, but that does not mean that they are required to accept something less than a court issued judgment about their case. The question of mootness posed in Gomez does not require looking at Rule 23, but Rule 23's requirements and the due process requirements of class action caution against a mootness ruling in Gomez that would vitiate the duty that a class representative owes his fellow class members. This is because to find that the case can be mooted by a mere offer of settlement would require an inference that the class representative may accept that offer with impunity because he owes no duty to continue with the case on behalf of others after he has been offered full monetary relief.
Thursday, May 14, 2015
Via Patricia W. Moore at the Civil Procedure and Federal Courts Blog, Brooke Coleman has written a post on Prawfsblawg on the "conceptual sketches" provided by the Rules Advisory Committee concerning proposed amendments to Rule 23. The post can be found here, and Coleman plans to discuss the sketches further in a future blog post.
It is also worth noting that Coleman, Liz Porter and David Marcus have organized the First Annual Civil Procedure Workshop, where members of the Class Action Rules Subcommittee of the Rules Advisory Committee will appear to discuss the proposed Rule 23 amendments. The workshop looks fantastic and is definitely worth attending!
Sunday, May 10, 2015
There is an interesting column in Bloomberg Business about the ongoing Chevron/Ecuador litigation. It discusses a pending appeal before the Second Circuit over Chevron's use of civil RICO to enjoin the enforcement of the Ecuadorian judgment against them. The column discusses, albeit briefly, the possible ramifications of a ruling allowing defendants to enjoin judgments by alleging that the plaintiffs' attorneys engaged in a scheme of extortion in violation of RICO. For a rundown of the oral argument, which was conducted on April 20th, check out this post here.
Friday, May 8, 2015
On February 27, 2015, the Committee on the Judiciary, Subcommittee on the Constitution and Civil Justice, held a hearing on the state of class actions post-CAFA. The witnesses' lack of ideological diversity (with Professor Moore as a single exception) is extremely troubling. The committee heard testimony from: Andrew Pincus (Partner, Mayer Brown, U.S. Chamber Institute for Legal Reform), John Parker Sweeney (President, DRI - the Voice of the Defense Bar), Jessica D. Miller (Partner, Skadden Arps), and Professor Patricia Moore (St. Thomas Univ. School of Law).
I want to point out an interesting article by Malcolm Gladwell in the New Yorker that looks back at the litigation surrounding the Ford Pinto case. Although the article talks about the criminal prosecution and some of the legal issues briefly, it focuses on the engineers in the case and their ex ante decisions to issue recalls. In my view, the ex ante decisions of engineers, and their inherent difficulty, do not get nearly enough attention in the media, even though the defendant's liability in mass tort cases always hinges on these decisions. A good read overall.
Wednesday, May 6, 2015
Yale Law Journal is publishing a note by Geoffrey Shaw on the latest hot topic in class litigation, class ascertainability. Here's the SSRN abstract:
In recent years, federal courts have been enforcing an “implicit” requirement for class certification, in addition to the explicit requirements established in Rule 23 of the Federal Rules of Civil Procedure. The ascertainability requirement insists that a proposed class be defined in “objective” terms and that an “administratively feasible” method exist for identifying individual class members and ascertaining their class membership. This requirement has generated considerable controversy and prevented the certification of many proposed classes. The requirement has taken a particular toll on consumer class actions, where potential class members are often unknown to the representative plaintiffs, often lack documentary proof of their injury, and often do not even know they have a legal claim at all.
This Note explores the ascertainability requirement’s conceptual foundations. The Note first evaluates the affirmative case for the requirement and finds it unpersuasive. At most, Rule 23 implicitly requires something much more modest: that classes enjoy what I call a minimally clear definition. The Note then argues that the ascertainability requirement frustrates the purposes of Rule 23 by pushing out of court the kind of cases Rule 23 was designed to bring into court. Finally, the Note proposes that courts abandon the ascertainability requirement and simply perform a rigorous analysis of Rule 23’s explicit requirements. This unremarkable approach to class certification better reflects what the Rule says and better advances what the Rule is for.