Monday, March 31, 2014
Adam Zimmerman (Loyola-LA) has posted two pieces to SSRN. First up is Presidential Settlements and the abstract provides:
Large groups repeatedly turn to the White House to collectively resolve complex disputes, much like a class action. Such presidential settlements go back at least as far as the early republic, as well as the Progressive Era, when Teddy Roosevelt famously brokered settlements among private groups following a rash of accidental injuries and deaths in mining, rail, and even, football. More modern variants include mass compensation schemes like the Holocaust Victim Settlement, Pan Am Flight 103 Settlement, and the BP Oil Spill Settlement brokered by Presidents Clinton, Bush and Obama. In each case, the President helped resolve a sprawling class action-like dispute among warring parties, while also advancing a broader executive agenda. Just as the President has extended power over the administrative state, presidential settlements demonstrate the growth of executive authority in mass dispute resolution to provide restitution for widespread harm.
But this use of executive power creates problems for victims purportedly served by presidential settlements. When the President settles massive private disputes, he resolves them like other forms of complex litigation, but without the judicial review, transparency, and participation thought necessary to resolve potential conflicts of interests among the victims. The Presidents’ other duties as the Chief Executive also aggravate conflicts with groups who may rely entirely on such settlements for relief.
This Article recommends that the President adopt complex litigation principles to reduce conflicts of interests, to increase transparency, and to improve public participation in White House driven settlements. Envisioning the President as the “Settler-In-Chief,” this Article also raises new questions about how the coordinate branches of government, as well as actors inside the White House, may regulate executive settlement practice consistent with the Separation of Powers.
Next is The Corporate Settlement Mill and the abstract provides:
From cases involving “robo-signed” mortgages to catastrophic oil spills, the United States legal system increasingly encourages corporate wrongdoers to design and implement their own high-volume settlement programs to compensate thousands of unrepresented victims. These private settlement systems rely on corporate economies of scale to resolve massive disputes as comprehensively as a class action, but entirely outside of the court system. We call these systems “corporate settlement mills.”
Like class action settlements and “no fault” insurance options, corporate settlement mills may ameliorate many of the most commonly criticized features of individualized litigation. They offer redress to people who often cannot afford counsel, handle large volumes of claims quickly and predictably, and reduce court congestion. For those reasons such programs are increasingly required by federal laws, regulatory bodies and as a matter of complex litigation practice.
But corporate settlement mills also have a dark side. When sophisticated corporate actors quietly settle large numbers of cases in assembly-line fashion, they threaten transparency, fair dealing, and the rule of law. We argue that this new category of dispute resolution is more dangerous than others because a single, self-interested party — the prospective defendant itself — designs and oversees the entire determination process. Corporate settlement mills thus raise fundamental questions about how far policymakers may go to privatize our public, and historically neutral, system of adjudication.
Drawing lessons from other movements to privatize government, we argue that corporate settlement mills can provide an appropriate alternative to public adjudication as long as they remain answerable to the regulators, courts, and claimants that rely on them. We therefore offer specific suggestions to make them more accountable — including targeted prospective regulation, judicial review, stakeholder participation, and ethical reform. In so doing, we broaden the debate over what constitutes mass litigation, in the hope that lawmakers realize the benefits of large private settlements, without frustrating administrative regulation or the judiciary’s authority to “say what the law is.”
Friday, March 28, 2014
Cathy Sharkey (NYU) has posted to SSRN State Farm 'with Teeth': Heightened Judicial Review in the Absence of Executive Oversight. The abstract provides:
While courts and commentators have considered the information-forcing role of executive oversight and/or judicial review of agency action, the dynamic relationship between the two has yet to be considered. This Article presents a novel justification for heightened judicial scrutiny in the absence of meaningful executive oversight. Agency cost-benefit analyses and agency conflict preemption determinations — two realms rarely if ever considered together — are compared in terms of their underlying reliance on factual predicates and contrasted in terms of the existing framework for executive oversight and judicial review of agency determinations.
A heightened judicial review standard — what I term “State Farm with teeth” — should guide courts’ evaluations of the cost-benefit analyses performed by independent agencies not subject to executive oversight. My Article is the first to draw the distinction between independent and executive agencies in the State Farm “hard look” context. It is also the first to explore the recent Business Roundtable decision by the D.C. Circuit through this analytical lens.
The stringent “State Farm with teeth” standard should likewise be applied to judicial review of agency determinations of conflict preemption. This Article’s discussion of recent developments involving the Office of Comptroller of the Currency’s assertion of preemption of state banking laws shows why. This Article also points to a potential new information-forcing role for Congress. Using the Dodd-Frank Act as an example, this Article further shows how Congress can set parameters for judicial review of the fact-based conflict preemption determination on the part of an agency.
Thursday, March 27, 2014
The Kansas Senate and House have passed similar bills to gradually raise the non-economic damages cap in personal injury cases from $250K to $350K. The major difference between the bills concerns the collateral source rule. The Senate version would allow jurors to hear testimony about whether a plaintiff's damages were covered by insurance; the House struck that provision. A conference committee has been selected. The Kansas Health Institute has coverage.
Tuesday, March 25, 2014
Aaron Twerski (Brooklyn) & James Henderson (Cornell) have posted to SSRN Fixing Failure to Warn. The abstract provides:
Failure to warn remains a doctrine in distress. More than two decades ago, the authors published an article identifying a number of problems with failure-to-warn doctrine in products liability law. In essence, the article criticizes the law traditionally governing products warnings for being little more than an “empty shell,” allowing claims that need only be asserted rhetorically to reach the jury. Afterwards the authors served as Reporters for the Restatement, Third, of Torts: Products Liability, helping to write black-letter rules covering product warnings and a number of other subjects. Working on the Restatement project involved coming to terms with the similarities and differences between defective design and failure to warn. One important difference relates to what a plaintiff must prove to establish a product defect. Regarding design-based liability, American courts generally require plaintiffs to prove that a specifically-identified reasonable alternative design (RAD) was available at the time of commercial distribution of the product. Regarding alleged failures to warn, many courts impose no similar burdens on the plaintiff. In those jurisdictions, the plaintiff need only assert in conclusory fashion that the defendant’s warnings of nonobvious product-related risks were inadequate, without specifying exactly what warning the defendant should have given or proving that a different warning would have done any good. The authors conclude that the same rigor necessary for a plaintiff to make out a prima facie design defect case should be required for alleged failures to warn. Plaintiffs asserting warning claims should be required to specify, by suggesting a reasonable alternative warning (RAW), exactly how the defendant should have effectively communicated product-related risks and to prove how the RAW would have prevented or reduced the plaintiff’s harm. From a broader perspective, too much has been made of the differences between design and warning and not enough has been made of their similarities. This essay aims to set things right.
Friday, March 21, 2014
Michael Frakes (Cornell) has posted to SSRN The Surprising Relevance of Medical Malpractice. The abstract provides:
The academic community has largely reached a consensus that medical malpractice reform is unlikely to be a meaningful source of health care cost containment. This Article suggests that one would be premature to take the evidence underlying this academic sentiment to conclude that physicians are universally insensitive to the parameters of medical malpractice law and that liability reform may have no role to play in the health care costs debate. On the contrary, this Article demonstrates that the medical liability system, under particular structures and/or under particular conditions, may have a meaningful connection indeed to health care spending patterns.
The shortcoming of the existing empirical literature that has likely contributed to this misconception is its failure to fully appreciate the structure of medical liability rules. By viewing the substantive dimension of malpractice law too abstractly, the literature has overlooked those features of the system, and of the environment in which it operates, that have likely led to the weak connection observed between medical liability forces and health care spending. This Article attempts to identify such features, theorizing that the limited empirical findings of the existing literature may, in part, be explained by the fact that the present liability system sets operable standards of care by deference to customary physician practices and that such customs are themselves shaped by financial and other influences that already encourage excessive spending. On the margin, financial motivations to provide unnecessary care may simply be crowding out the influence of the law.
Nonetheless, the theoretical framework set forth in this Article identifies various scenarios in which health care spending may exhibit greater sensitivity to liability pressures. First, despite any present crowd-out of liability forces by financial motivations, this model suggests that defensive medicine may become a more noticeable phenomenon should other delivery system reforms succeed in curbing pernicious financial incentives to over-treat patients. Second, this framework predicts that spending patterns have the potential to diminish considerably upon the adoption of more structural reforms to the liability system and to the nature in which liability standards are set, as distinct from the remedy-focused reforms — e.g., damage caps — implemented by legislatures to date. Finally, this Article supports the various predictions of this model through the presentation of a range of empirical findings. Much of this supporting evidence comes from various facets of the existing literature, including recent papers by this Author. However, this Article builds on this empirical precedent by providing new evidence of the sensitivity of defensive medicine to the prevalence of financial motivations to provide excessive care, drawing upon previously unavailable data on health care costs and implementing a sophisticated natural-experiment design.
Thursday, March 20, 2014
Edmund Ursin (San Diego) has posted to SSRN Holmes, Cardozo, and the Legal Realists: Early Incarnations of Legal Pragmatism and Enterprise Liability. The abstract provides:
Enterprise liability is a term associated with the tort lawmaking of the liberal “Traynor era” California Supreme Court of the 1960s and 1970s. Legal pragmatism, in turn, is associated with the conservative jurist Richard Posner. This manuscript examines the evolution of each of these theoretical movements from Holmes’s great 1897 essay, “The Path of the Law,” to the present day. Its focus is on the great judges and scholars whose views have shaped our own: Holmes, Cardozo, the Legal Realists Leon Green and Karl Llewellyn, Traynor, and Posner.
Stated simply, the shared jurisprudential view of these great judges and scholars is that in our system judges are legislators as well as adjudicators — and policy plays a role in their lawmaking. In the common law subjects, in fact, judges are the primacy lawmakers. In constitutional adjudication they are also lawmakers but lawmakers aware of the general need for deference to other branches. No fancy formulas such as “neutral principle “or “original meaning” can capture this role. Indeed, the leading academic theorists of the past century — and today — have been out of touch with the reality of judicial lawmaking as it has been expressly articulated by these great judge. We also see in the works of these judges and scholars the origins of the enterprise liability doctrines that the pragmatic Traynor era court of the 1960s and 1970s, would adopt, including the doctrine of strict products liability and expansive developments within the negligence system.
Tuesday, March 18, 2014
Many of you know that Carolina Academic Press launched the Context and Practice Series as a way for law profs to implement the ideas in the Carnegie Report and Best Practices. I've used Michael Hunter Schwartz's and Denise Riebe's Contracts casebook and found it very student-friendly. Now Alex Long (Tennessee) and Meredith Duncan (Houston) are publishing Advanced Torts in that series. From the CAP blurb:
Advanced Torts: A Context and Practice Casebook
by Alex B. Long, Meredith J. Duncan
Advanced Torts focuses primarily on tort theories that are not covered in significant detail in the standard first-semester Torts course. However, the book explores these topics with a particular emphasis on how they apply to lawyers engaged in the practice of law. Thus, students learn about defamation, interference with contractual relations, etc. while reading cases and working through problems that frequently involve lawyers as litigants. Given the reality that a lawyer is more likely to be sued for malpractice or some related theory during the lawyer’s career than it is the lawyer will face professional discipline, the subject matter of the book should resonate with students in a way that most Advanced Torts books do not.
The book covers the theories of liability often addressed in Advanced Torts courses, and some of the cases do not involve lawyers as parties. In this sense, the book is general enough that it can be used in any Advanced Torts class. However, it also includes material that should be of special concern for lawyers, including several chapters devoted to legal malpractice. Thus, it could be used in an Advanced Torts class as well as a stand-alone class devoted to legal malpractice and related theories of liability. Throughout the book, the authors make a conscious effort to help aspiring lawyers develop their professional identities as they learn the doctrine.
The Lousiana Legsilative session began last Monday, and a bunch of tort reform bills have been introduced:
- HB 799 - prohibiting contingency fees in outside counsel contracts
- HB 482 & 483 - venue in latent disease cases
- HB 917 - lowering the monetary threshold required for a jury trial to $0
- HB 925 & SB 414 - regulation of the lawsuit lending industry
Coalition for Common Sense has links to the bills and a summary of the bills' status.
Monday, March 17, 2014
From Stacie Strong (Missouri):
On April 9, the 11th Annual ITA-ASIL Conference: Mass and Class Claims in Arbitration will be presented from 12:00 noon – 4:30 p.m. in Washington D.C. at the Ronald Reagan International Trade Center.
The conference examines the competing trends and future prospects for class and mass claims in litigation and arbitration and features a keynote address by Carolyn B. Lamm (White & Case LLP, Washington, D.C.), past President of the ABA and lead advocate for the 60,000 Italian claimants in Abaclat v. Argentine Republic.
Other participants include co-chairs Christopher Drahozal (University of Kansas School of Law) and S. I. Strong (University of Missouri School of Law) and a stellar faculty including Deepak Gupta (Gupta Beck PLLC, Washington, D.C.) and Geneviève Saumier (McGill University Faculty of Law, Montreal), who will discuss class arbitration in a domestic and comparative context, and Michael Waibel (University of Cambridge, Lauterpacht Centre for International Law, Cambridge) and Samuel Wordsworth, Q.C.(Essex Court Chambers, London), who will discuss mass claims. Registration includes the networking luncheon which precedes the conference this year.
Thursday, March 13, 2014
Today the Florida Supreme Court ruled that Florida's med mal caps violate the state constitution's equal protection clause, at least as applied to wrongful death cases. The Miami Herald has the story.
Wednesday, March 12, 2014
Wednesday, April 9, 12:25-1:50 p.m.
Vanderbilt Hall, Greenberg Lounge
Hosted by the Center on Civil Justice With additional support from the American Constitution Society and the Federalist Society
Jury trials in civil cases are part of our Bill of Rights, and the jury trial has always been thought of as a pillar of American democracy. In practice, however, it is increasingly rare. Why is this happening? What does the demise of the jury trial mean for our civil justice system? Does it change democratic citizenship? Can the trend be reversed? Should we try, or just allow the jury trial become a relic of an earlier time? Our distinguished panel of trial and appellate lawyers and academic experts will discuss these and other hotly debated questions.
CLE Approval Pending
PANELISTS: Mark Behrens, Partner, Shook, Hardy & Bacon LLP Renée Lettow Lerner, Associate Professor of Law, The George Washington University Law School, Andrew Pincus, Partner, Mayer Brown Stephen Susman, Partner, Susman Godfrey
Arthur R. Miller, University Professor, NYU School of Law
Tuesday, March 11, 2014
The Hall Center for Law and Health and the Indiana Health Law Review have announced their annual symposium, Neuroscience and Law: Injury, Capacity and Illness, which will be held on March 28, 2014, in Indianapolis.
Monday, March 10, 2014
In "Would Litigation Financing Improve Mass Torts," the National Law Journal examines an article by Professor Byron Stier suggesting that plaintiffs should be allowed to sell their claims to financial entities. As Chris mentioned in an earlier post, Byron's article was part of the "Perspectives on Mass Tort Litgiation" symposium held at Widener last April.
Friday, March 7, 2014
Jeffrey Pojanowski (Notre Dame) has posted to SSRN Private Law in the Gaps. The abstract provides:
Private law subjects like tort, contract, and property are traditionally taken to be at the core of the common law tradition, yet statutes increasingly intersect with these bodies of doctrine. This Article draws on recent work in private law theory and statutory interpretation to consider afresh what courts should do with private law in statutory gaps. In particular, it focuses on statutes touching on tort law, a field at the leading edge of private law theory.
This Article’s analysis unsettles some conventional wisdom about the intersection of private law and statutes. Many leading tort scholars and jurists embrace a regulatory conception of private law while also advocating courts’ independent judgment in statutory gaps. Much public law theory on statutory interpretation, however, challenges this preference for background law over legislative policy, at least when private law is understood primarily as public regulation. By contrast, the more a court views private law as a coherent practice autonomous from public regulation, the more justification it has to develop that doctrine amid legislative silence. This space for creativity can be most pronounced for statutory formalists like textualists, a counterintuitive implication given the latter approach’s association with judicial restraint.
Finally, the analysis illuminates the larger question of whether private law adjudication and scholarship need an intervention from public law theory in statutory interpretation. If, as much law and scholarship presumes, private law is simply public regulation by adjudicative means, most every question at the junction of private law and legislation concerns statutory interpretation broadly understood. In that case, private law scholars’ indifference about public law scholarship in legislation is difficult to defend. By comparison, private law’s innocence of statutory interpretation theory is more easily justified on noninstrumental assumptions about background doctrine.
The full Missouri House approved a $350K cap in med mal cases yesterday in front of an audience of doctors packing the galleries. The bill now moves on to the Senate. The Saint Louis Post-Dispatch has the story.
Thursday, March 6, 2014
Mark Geistfeld (NYU) has posted to SSRN Tort Law in the Age of Statutes. The abstract provides:
The common law of torts is widely considered to be in conflict with the modern regulatory state. Tort law interacts with regulations and their enabling statutes in different ways that are fully addressed by the doctrines of negligence per se, the regulatory compliance defense, and statutory preemption. According to a substantial body of scholarship, these three statutorily related doctrines are a muddle, lacking any coherent theory that adequately accounts for the competing institutional concerns of the federal regulatory and state tort systems. The problem resides in a mistaken focus on statutory purpose. Due to the supremacy of legislative law, a statutory purpose to modify tort law would seem to fully determine the relation between the common law of torts and the regulatory state. This conclusion is mistaken, however, explaining why there has been so much confusion and controversy about the matter. Systematic analysis across the doctrines of negligence per se, the regulatory compliance defense, and implied statutory preemption shows that they are instead unified by a single underlying principle: When a statute or administrative regulation is based on a policy decision that is relevant to the resolution of a tort claim, courts will defer to the non-binding legislative policy determination as a matter of common-law discretion. This immanent principle of common-law deference gives much-needed structure to the three statutorily related doctrines, filling the analytic gap created by the overly narrow inquiry into statutory purpose. The legislative intent to modify tort law certainly matters, but the principle of deference provides the primary means by which courts integrate health and safety legislation into the common law of torts, eliminating the purported conflict between tort law and the modern regulatory state.
Wednesday, March 5, 2014
Herb Hovenkamp (Iowa) has posted to SSRN Fractured Legal Institutions. The abstract provides:
This article considers a previously unexamined question: How can we improve the legal analysis of conflicts that occur in very small arenas? The conflicts can be of many kinds, including a nuisance dispute between neighbors, an impending collision between two moving vehicles, a joint decision between spouses about whether or on what terms to continue their marriage, or a disagreement between managers and shareholders within a firm.
The prevailing literature typically refers to these small environments as “markets.” Thinking of them as markets, however, averts our attention from larger environments that should be considered but that often do not function well as private markets. For example, efficiency queries typically look at the wealth created (or destroyed) only in the micromarket at hand, treating gains or losses to others only as externalities to the extent that they are not internalized by bargaining or adoption of the appropriate legal rule. Stepping back and looking at a larger arena often permits superior solutions, particularly when extraction from previous commitments is costly.
Focusing on the larger rather the smaller environment can enable an increase in social wealth or welfare but may also require greater State intervention. As the environment becomes larger bargaining works less well. As a result, we may have to abandon the language of markets or constrain its use, particularly when instability (cycling) or behavioral issues are prominent. In these settings the “market” is often little more than a metaphor. One way to think of the problem is as institutional fracture, or the cost of breaking the arenas in which people interact into excessively small pieces.
A comparison of the law and economics of common law nuisance and that of automobile accidents illustrates the differences. The Coasean literature focused on neighbors whose interests were in place and where bargaining was conceivable. As a result, two people sharing a single building in London came to be regarded as the “market” for legal analysis. By contrast, bargaining metaphors completely failed in the law of automobile accidents, where bargaining is a much less promising resolution to conflict problems. This forced the analysis to step back and consider the full arena in which motor vehicles operate rather than individual pairwise conflicts. As a result, outcomes in cases involving traffic disputes are inherently superior to outcomes in cases involving nuisance disputes between neighbors.
The article concludes with a discussion of useful default rules for avoiding or controlling institutional fracture. The theory of private default rules has not done an adequate job of differentiating their use in different institutional settings. A complete theory of private default rules must address three important issues. The first is How should the legal policy maker select a default rule? The second is When should the rule be a “default” and when should it be absolute? Third is What kind of bargaining coalition is needed to reverse the default?
Finally, often it makes sense to “stack” a contractual mechanism, together with appropriate default rules, on top of a regulatory mechanism. For example, an optimal land use policy would use an underdeterrent zoning law, which eliminates more severe conflicts before they occur, but stack on top of this a set of private contract rules for dealing with more narrowly focused and idiosyncratic land use conflicts.
Monday, March 3, 2014
Jill Wieber Lens (Baylor) has posted Warning: A Post-Sale Duty to Warn Targets Small Manufacturers on SSRN. The abstract provides:
The majority of states now obligate manufacturers to warn about dangers of their products that are discoverable after the sale. Commentators and courts have been hesitant about this obligation because of the potential burden it puts on manufacturers — the costs of identifying users and warning them of the danger. The consensus is that only a factually dependent post-sale duty to warn should exist, obligating manufacturers to warn only if a reasonable manufacturer would do so. A reasonable manufacturer, of course, would warn only if the danger to be warned of justifies the costs of the warning.
This Article is the first to identify a massive problem with a factually dependent post-sale duty to warn — that it will most likely result in liability for small manufacturers, but not large manufacturers. This is because the costs of issuing the warning for a small manufacturer will always be smaller than for a large manufacturer. This Article is also the first to argue that a factually dependent post-sale duty to warn is thus inconsistent with the underlying purposes of products liability law and general public policy. Although the factually dependent post-sale duty to warn seemed like a perfect solution to the overburdening problem, it should not be adopted.