March 2, 2012
Epstein Joined by Sharkey for Casebook's 10th Edition
Today Wolters Kluwer releases the 10th edition of the Epstein casebook, with Cathy Sharkey (NYU) as a co-editor. To see Epstein & Sharkey's Cases and Materials on Torts, click here:
The Tenth Edition represents the launch of a new partnership between Richard Epstein, who has edited this casebook since 1977, and Catherine Sharkey, who joins as co-editor for this and future editions. Our goal is nothing short of producing a Torts casebook for the next generation of torts professors and students. With that in mind, we have held fast to all of the intellectual rigor, historical depth, and careful case selection and comprehensive notes of the previous nine editions. But we have embraced change as well, adding diverse perspectives (such as race and gender-based critiques of damages calculations), incorporating contemporary empirical scholarship (especially on medical malpractice, damages and jury decisionmaking), and addressing the influence of technology (such as privacy and defamation in the Internet age). It is fitting that, with the Tenth Edition, we introduce the Smart Book electronic edition of the casebook, which will create opportunities for professors and students to incorporate additional materials, including photographs, podcasts, and videos.
We received requests for modest additions, including references to the Second or Third Restatement or other governing law. Many edits reflect this valuable feedback from professors who have used previous editions of the casebook. On several professors' request, we have also added "Problems," which are hypotheticals based on real cases. They are designed to test student understanding of major concepts, and answers are discussed in this Manual.
We welcome dialogue with all users of our casebook. We have benefited greatly from comments and criticisms received over the years. And we imagine that the new Smart Book will only open the door further to such collaboration. It is our hope that, together, we can build the most effective casebook for a new generation. We are eager to hear from you: email@example.com; firstname.lastname@example.org.
March 1, 2012
Mass Torts in the Federal Courts - Recap Part II
As I mentioned yesterday, kudos to the students of the Federal Courts Law Review here at the Charleston School of Law for the Mass Torts in the Federal Courts symposium last week. In addition to the keynote address by Ken Feinberg and remarks by Judge Corodemus, the day included three lively panel presentations.
Panel One focused on Preemption. Moderated by my colleague, Bill Janssen, the panel featured (left to right) Jim Beck (Drug & Device Blog/Dechert), Deepak Gupta (Senior Counsel, Consumer Financial Protection Bureau), and Cathy Sharkey (NYU). Beck focused on the presumption against preemption and pointed out the Supreme Court's inconsistency on the doctrine. Beck termed the presumption a "judicial football," and noted that Justice Kennedy holds the "key vote" on the issue. Gupta provided a consumer protection viewpoint, and noted that agencies rely on the tort system to supplement and inform the agency's work. Sharkey pointed out the "absurdity" of the Court's rulings in Wyeth v. Levine and Pliva v. Mensing: If you take the generic version of a drug, preemption applies, but if you take the brand name version of the same drug, preemption does not apply. Sharkey advocated a new framework for the Court to view the preemption question focusing on agency consideration: whether the governing agency has paid particular attention to the risk of the plaintiff's injury should control the premption question.
I moderated Panel Two on "Aggregation and Mass Torts." Sheila Birnbaum is speaking in the photo, while seated left to right are myself, Timothy Eble, Alexandra Lahav (Connecticut) and Linda Mullenix (Texas). Eble and Lahav focused on the current litigation system, while Mullenix and Birnbaum addressed the fund approach. Eble focused on settlement class actions and presented a case study involving a medical monitoring settlement class action. He argued that the settlement class is an appropriate use of Rule 23. Lahav discussed the tension between individualism and efficiency in the debate over how to adjudicate mass torts, and asserted that a third value was missing from this discussion: equality. Responding to Ken Feinberg, Mullenix argued that the fund approach is not "sui generis," but increasingly the chosen method for resolving mass torts. Her presentation focused on the voluntariness of a plaintiff's election of remedies under a fund system, and suggested three solutions to combat what she argued was uninformed consent. Her solutions included provision of pro bono counsel to fund claimants, bar association counseling of fund claimants, and judicial invalidation of fund award's based on lack of informed consent. Birnbaum agreed that we are "going to have lots and lots of funds." In response to Mullenix, Birnbaum pointed out that most of the 9/11 claimants had counsel and discussed her work with the 9/11 litigants as well as with the new 9/11 Fund claimants. Birnbaum asserted that the fund approach can provide "more justice" than litigation and criticized the expense and delay involved in the tort system.
The final panel considered Ethical Issues Surrounding Fees and Settlements in Mass Torts. Nathan Crystal (Charleston) moderated the panel, with presentations by (left to right) Lynn Baker (Texas), Beth Burke (Richardson Patrick), John Beisner (Skadden), and Morris Ratner (Visting, Harvard/Professor-Elect, UC Hastings). Burke discussed aggregate settlements under Model Rule of Professional Responsibility 1.8, and the use of a point-based allocation system as opposed to a dollar-based system. Ratner addressed a new phenomena - trial courts relying on the ethical rules to impose caps on attorneys' fees in non-class settlements. He argued that the ethics rules do not provide the right guidance to fill this procedural gap, and further that incorporating the ethical rules in this fashion imposed a cost on the system. Beisner proposed that the ethics rules should be strengthened to better address conflicts of interest at the outset of mass tort litigation. In response to Ratner, Beisner suggested that courts felt a need to do something about fees that were perceived to be too high. Finally, Baker also considered the trend of judges imposing caps on fees in non-class actions, and asked whether the plaintiffs' attorney ethically may challenge the cap where the court sua sponte has now created a conflict of interest between the attorney and her client.
My thanks to all the participants for a wonderful conference.
February 29, 2012
Mass Torts in the Federal Courts - Recap Part I
Congratulations to the students of the Federal Courts Law Review for a wonderful symposium last Friday, February 24, 2012, on "Mass Torts in the Federal Courts." In today's post, I will recap the two individual presenters: Ken Feinberg and the Honorable Marina Corodemus (ret.).
Ken Feinberg gave the keynote address. His remarks focused on his work with the 9/11 Fund as well as the Gulf Coast Claims Facility. Feinberg noted five options to adjudicating mass torts: (1) Rule 23 class actions, (2), MDLs, (3) regional consolidation, (4) bankruptcy by the defendant, and (5) individual litigation of each case. Feinberg expressed skepticism that Rule 23 permitted aggregation of mass torts. While acknowledging that MDLs worked for mass torts, he pointed out that MDLs only capture federal cases. The downside to regional consolidation, according to Feinberg, was that it did not provide truly mass resolution. Finally, he asserted that bankruptcy was a "draconian way" to achieve mass resolution. He argued that the 9/11 Fund and the Gulf Coast Claims Facility were both sui generis and challenged the audience (and other speakers) to address three questions: (1) Are the federal courts receptive to mass tort litigation? (2) What legal challenges to do mass torts confront in the federal courts? and (3) What is the alternative to adjudicating mass torts in the federal courts? Audience questions raised the delegation issue inherent in the fund approach: is it a good idea to delegate all of that authority to one person to resolve mass tort claims including the amount of payment?
The Honorable Marina Corodemus (ret). shared "A View from the Bench" based on her perspective as New Jersey's sole mass torts judge for over ten years. Judge Corodemus discussed her experiences in trying to coordinate mass tort cases with federal judges handling MDLs as well as other state court judges. She concluded by identifying two problems for the future: (1) the increasing number of mass tort claims and (2) the shrinking budgets of the state court system.
In tomorrow's post, I will describe the three panel presentations.
February 28, 2012
Asbestos Claims from Malta
Asbestos.com reports the heirs of dockyard workers in the tiny Mediterranean country of Malta filed asbestos-liability claims in New York against American companies that made products used aboard U.S. Navy ships.
The dock workers were exposed to the asbestos when the Navy ships were brought in for service and repairs. Although the exposure came as long as 40 years ago, some of the worker died only recently. Mesothelioma cancer, which is caused by the asbestos exposure, can linger for up to 50 years before it shows any symptoms.
According to Maltatoday, the leading news service in Malta, up to 400 workers or their families have filed claims through the United States court system.
Thanks to Cary Sklaren for the tip.
February 27, 2012
Wriggins on Compulsory Auto Insurance as Precedent for the Health Insurance Individual Mandate
Jenny Wriggins (Maine) has posted to SSRN a paper sure to receive attention, Is the Health Insurance Individual Mandate 'Unprecedented?': The Case of Auto Insurance Mandates. The abstract provides:
Opponents of the Patient Protection and Affordable Care Act of 2010 assert that the ‘individual mandate’ is unprecedented, not just in the narrow and obvious sense that the federal government has never before required people to have health insurance, but in a much broader sense as well. They claim government even at the state level has never before required people to insure themselves. This article examines the assertion that the mandate is an unprecedented outlier and a sharp departure from all past government policies. This article finds that the laws in many states require drivers to purchase insurance coverage for their own injuries, that several states’ laws require drivers to buy coverage for their own medical expenses, and that liability insurance mandates protect careless drivers along with their victims. These long-standing individual insurance mandates have been overlooked by both sides in the current debate. As requirements for people to insure themselves, they are clear, powerful precedents for the health insurance individual mandate. If forced to admit that these laws exist, opponents may then claim that driving is a pure choice: If people object to state auto insurance laws, they can simply opt out and choose not to drive, while there is no opt-out from the individual health insurance mandate. The article argues that ‘driving as a pure choice’ is largely illusory and not a sufficient basis on which to argue that these precedents are irrelevant.
Finally, the article turns to the forgotten history of auto insurance mandates, drawing lessons from that history for today’s debate. The history shows first that, leaving aside the Commerce Clause arguments which by definition only apply to the federal government, the arguments used to resist auto insurance mandates were strikingly similar to arguments used to oppose the health insurance individual mandate. Second, courts have consistently recognized a link between insurance and the public welfare justifying regulation in the auto context. Third, governments have recognized for decades that the auto insurance market must be regulated to provide a socially optimal level of coverage, as seen in the U.S. Supreme Court’s 1951 decision upholding a California market regulation law. Finally, state governments have long required people to purchase insurance for themselves from private sellers. The health insurance individual mandate is not different in kind from auto insurance individual mandates but rather extends the idea of insurance mandates to an even more important context.