Thursday, July 24, 2014
The distinction between physical and emotional harm is fundamental. Legal disciplines from torts to constitutional law rely on the hierarchy that places bodily integrity over emotional tranquility. This hierarchy is now under attack by modern scientists and scholars. Neuroscientists have undermined the view that emotional harm is more subjective; social scientists have refuted the position that emotional harm is less impactful; and feminist scholars have undercut the view that these categories are gender neutral. Courts are taking notice, especially in tort law. Each new Restatement of Torts provides more avenues for plaintiffs to collect damages for emotional injuries.
This Article defends the relevance of the distinction between physical and emotional harm, especially in tort law, by offering theoretical justifications that are responsive to the modern criticisms. A new conception of the distinction should be based on a duty to reasonably regulate one’s own emotional health. This duty fits well within tort theories including law and economics, corrective justice, and civil recourse theory, and harmonizes with criminal law and First Amendment doctrines. Further, neuroscience, social science, and even feminist theory support this duty. A duty to maintain one’s own emotional well being can benefit both potential tort plaintiffs and defendants by incorporating normative ideals about identity, consent, autonomy, social justice, and social welfare. In advancing this emotional duty, this Article also provides sustainable definitions for physical and emotional harm that can survive changing technology and discusses the implications of a new understanding of the physical/emotional hierarchy for tort law.
Tuesday, July 22, 2014
Riaz Tejani (University of Illinois Springfield-Department of Legal Studies) has posted to SSRN National Geographics: Toward a 'Federalism Function' of American Tort Law. The abstract provides:
This Article defends current contours in the federalization of tort law wherein norms have been federalized in discrete substantive areas although remaining shielded from federal incursion in others. As suggested here, it becomes the task of judges to develop and refine these contours in the same fashion that they serve public law needs elsewhere through adjudication. In support of this claim, this Article develops what I term the “federalism function” — the capacity for torts disputes to implicate the balance of federal and state authority and thereby reinforce or recalibrate that balance in large or small measure. Indeed, as problems of scale cut increasingly across political persuasion and economic worldview, the balance of central and local power through federalism becomes a key implication of many torts disputes today. This discussion is overdue in light of wider debates about federal preemption and state sovereignty. Immigration reform and marijuana regulation are but two hot-button issues that illustrate the contemporary struggle over federalism. More than tort law, these areas implicate what many have come to describe as “global governance” — the effort to assert uniform norms across ever-wider geographic and political distances. Because immigration and marijuana policies necessarily affect the flow of people and things across the international border, they more understandably implicate and undermine the idea of states’ rights. Tort law, meanwhile, still deals in cognizable, individual harms to person and property and has been the domain of state authority for centuries. Nevertheless, tortious conduct increasingly flows across state boundaries via mass-market actors and increased communication technologies. Adjudication in tort disputes increasingly takes the form of “public” or “regulatory” law. It is then, in light of federalism’s widespread influence in policy discussions across the spectrum, not surprising to find the integrity of state common law up for reconsideration in many tort cases. This reconsideration forms the federalism function.
Wednesday, July 16, 2014
David Hyman (Illinois) and Charles Silver (Texas) have posted to SSRN Double, Double Toil and Trouble: Justice-Talk and the Future of Medical Malpractice Litigation. The abstract provides:
It’s not easy being a lawyer. “Biglaw” may not be dead (yet), but major firms have dissolved, filed for bankruptcy, and shed partners and practice groups. Small and mid-sized firms and solo practitioners are facing similar challenges. Some of these developments are attributable to the financial crisis and the Great Recession. Others are the result of structural and technological changes affecting the market for legal services — and those changes have revealed new weaknesses in the business forms through which lawyers have traditionally delivered legal services. To most inhabitants of Biglaw, these changes and challenges are unprecedented, but to lawyers who do medical malpractice and personal injury litigation, market turbulence of this sort is old hat. Over the past three decades, there have been dramatic changes in the market (and demand) for such services. Some of these changes are clearly attributable to legislative action, including caps on noneconomic or total damages, and procedural hurdles such as screening panels, certification requirements, and interlocutory appeals of expert witness reports. But, even in states that have not taken such steps, there has been a long-term secular decline in the volume of medical malpractice litigation. Apart from the highly visible public brawl over the merits of damage caps, these developments have attracted little attention. However, the dynamics are clear to those who wish to pay attention to them. In this Article, we explore these trends, highlight the ways in which they have interacted with one another, and then briefly discuss why it is not helpful to analyze these developments in terms of their impact on “access to justice.”
Tuesday, July 15, 2014
Friday, July 11, 2014
Erik Encarnacion has posted "Corrective Justice as Making Amends" to SSRN. The abstract provides:
Many tort theorists claim that tort law’s basic structure must be understood in terms of moral principles of corrective justice. Formulations of these principles vary, but they hold (roughly) that one person who injures another wrongfully has a duty to repair the losses associated with that injury. In the last decade, several tort theorists have criticized traditional corrective justice theories for, among other things, failing to account for key structural features of tort practice. This article outlines and defends an alternative conception of corrective justice called the making amends conception. By understanding corrective justice as just another name for the familiar moral phenomenon of making amends, and by viewing tort law as a formalization of that informal phenomenon, we can arrive at a conception of corrective justice that can resist the criticisms while providing an independently attractive picture of tort law.
Monday, July 7, 2014
Alberto Bernabe (The John Marshall Law School & Torts Blog) has posted to SSRN Civil Liability for Injuries Caused by Dogs after Tracey v. Solesky: New Path to the Future or Back to the Past?. The abstract provides:
Two years ago, the Maryland Court of Appeals issued an opinion in a case called Tracey v. Solesky in which it modified the common law of the state related to strict liability in cases involving injuries caused by dogs. Although Solesky was neither a big departure from the applicable law at the time nor an adoption of the alternative, and more prevalent, view in other jurisdictions, the Maryland legislature eventually abrogated its holding entirely. As a result, the current applicable doctrine is a collage of different approaches and it is difficult to see how it protects victims of dog attacks more than they were protected before Solesky. This article reviews the tort law doctrines that operate to manage the costs of injuries caused by dogs and discusses the consequences of the approval of the new statute in Maryland. It concludes that instead of reverting back to the common law predating Solesky, a more careful balancing of the interests involved should have resulted in either adopting the prevalent view in the majority of jurisdictions or in an understanding of how Solesky actually advanced a better public policy than the common law it modified.
Thursday, July 3, 2014
Greg Keating (USC) has posted two pieces to SSRN. First, When Is Emotional Distress Harm?. The abstract provides:
In 1968, the California Supreme Court decided Dillon v. Legg, to this day the most famous American negligent infliction of emotional distress (NIED) case. In a nutshell, Dillon ruled that, henceforth, the scope of liability for negligent infliction of emotional harm would be governed by the same principle of reasonable foreseeability which governs the scope of liability for the infliction of physical harm. In retrospect, Dillon brought to a close an important period of American negligence law. Early in the twentieth century, in his celebrated MacPherson and Palsgraf decisions, Benjamin Cardozo made reasonable foreseeability the cornerstone of both duty and scope of liability (proximate cause). In extending the principle of reasonable foreseeability to cover emotional distress as well as physical harm, Dillon was fulfilling the premise and promise of Cardozo’s great decisions. Yet within twenty years, it became clear to the very same court that, although reasonable foreseeability sets reasonable boundaries to liability for physical harm, it licenses too much liability for emotional distress. In an ironic development, the principle of reasonable foreseeability embraced by Dillon v. Legg was recast as an arbitrary rule in Thing v. LaChusa. Ever since, courts and commentators have struggled to articulate principled boundaries for liability for NIED.
For the most part, courts have rested on the unsatisfying principle that liability must have some limit and pretty much any limit will do. The conventional wisdom is that this kind of arbitrary limitation is unavoidable. This chapter, prepared for the Obligations VII conference on Challenging Orthodoxy in Private Law, argues that progress may be made toward articulating principled boundaries for emotional injury by pursuing two paths. The first is taxonomical. NIED is about scope of liability; it is properly understood as a matter of proximate cause, not duty. The duty breached in Dillon v. Legg, for example, was the long-established duty to exercise reasonable care when driving an automobile. The question before the court was whether liability for breach of that duty extended to persons who foreseeably suffered severe emotional distress. What is true of this particular case is true generally: NIED does not ground new duties of care, it extends liability for breaches of preexisting, independently recognized, duties of care. This itself places boundaries on liability. The second path toward articulating principled boundaries on NIED liability is to inquire into the concept of harm and ask just when emotional distress counts as harm. Liability for negligence is, at its core, liability for physical harm and physical harm has long been understood in the law of negligence to mean physical impairment. Physical impairment, for its part, is impairment of normal physical capacities.
There is progress to be made in discrimination among instances of emotional distress by extending this idea of impairment to emotional injuries. Some emotional harms are impairments; to suffer them is to be left with impaired psychological capacities. Childhood sexual abuse, for example, characteristically leaves its victims with impaired capacities for trust. The death of one’s small child — the harm at issue in Dillon — is a harder case, but it seems intuitively correct to say that the death of a child often impairs the life of the parent in a profound way. Parents who witness the deaths of their children are often “never the same.” Part of the parent dies with the child, because the child’s life represents such a deep and irreplaceable investment of the parent’s agency. By asking when and why emotional suffering is not transient distress but enduring impairment it may be possible to make progress in limiting NIED liability in a principled, non-arbitrary manner.
Second, Strict Liability Wrongs; the abstract provides:
Strict liability is an orphan among moral theorists of torts. They wish either to expunge it from the law of torts entirely, or to assimilate it to negligence liability. This chapter argues that strict liability torts are genuine wrongs. They involve violations of rights, and they delineate two distinctive domains of wrongful conduct. One domain — the territory of “harm-based” strict liabilities — involves the distinctive wrong of harming-without-repairing. The other domain — the territory of “sovereignty torts” — involves the distinctive wrong of violating core autonomy rights which confer on persons fundamental powers of control over their selves and their property.
Tuesday, July 1, 2014
The Tulane Law Review recently hosted "The Evolution of Asbestos Litigation: Enduring Issues and the Administration of Trusts." The articles are now available:
Edward F. Sherman, The Evolution of Asbestos Litigation, 88 Tul. L. Rev. 1021 (2014).
Georgene Vairo, Lessons Learned By the Reporter: Is Disaggregation the Answer to the Asbestos Mess?, 88 Tul. L. Rev. 1039 (2014).
Lester Brickman, Fraud and Abuse in Mesothelioma Litigation, 88 Tul. L. Rev. 1071 (2014).
Joseph Sanders, The “Every Exposure” Cases and the Beginning of the Asbestos Endgame, 88 Tul. L. Rev. 1153 (2014).
Peggy L. Ableman, A Case Study From a Judicial Perspective: How Fairness and Integrity in Asbestos Tort Litigation Can Be Undermined by Lack of Access to Bankruptcy Trust Claims, 88 Tul. L. Rev. 1185 (2014).
Anita Bernstein, Gender in Asbestos Law: Cui Bono? Cui Pacat?, 88 Tul. L. Rev. 11211 (2014).
The second set of articles from the April 2013 symposium at Widener, Perspectives on Mass Tort Litigation, are now available.
Christopher J. Robinette, Introduction, Part II Download Robinette Intro 2 - Ready for Pub. 6.21.14
Aaron Twerski & Lior Sapir, Sufficiency of the Evidence Does Not Meet the Daubert Standards: A Critique of the Green-Sanders Proposal Download Twerski - Ready for Pub. 6.17.14
Michael D. Green & Joseph Sanders, In Defense of Sufficiency: A Reply to Professor Twerski and Mr. Sapir Download Green - Ready for Pub. 6.18.14
William P. Shelley, Jacob C. Cohn & Joseph A. Arnold, Further Transparency Between the Tort System and Section 524(g) Asbestos Trusts, 2014 Update Download Shelley - Ready for Pub. 6.19.2014
Bruce Mattock, Andrew Sackett & Jason Shipp, Clearing Up the False Premises Underlying the Push for Asbestos Bankruptcy Trust "Transparency" Download Mattock - Ready for Pub. 6.18.14
Scott B. Cooper & Lara Antonuk, The Royal Nonesuch: How Tort Reformers Are Pulling One Over on Pennsylvania Download Cooper & Antonuk - Ready for Pub. 6.18.14
Congratulations to the Widener Law Journal for two great issues.
Monday, June 30, 2014
Mark Geistfeld (NYU) has posted to SSRN The Tort Entitlement to Physical Security as the Distributive Basis for Environmental, Health, and Safety Regulations. The abstract provides:
In a wide variety of contexts, individuals face a risk of being physically harmed by the conduct of others in the community. The extent to which the government protects individuals from such harmful behavior largely depends on the combined effect of administrative regulation, criminal law, and tort law. Unless these different departments are coordinated, the government cannot ensure that individuals are adequately secure from the cumulative threat of physical harm. What is adequate for this purpose depends on the underlying entitlement to physical security. What one has lost for purposes of legal analysis depends on what one what was entitled to in the first instance. For example, different specifications of the entitlement can produce substantially different measures of cost that fundamentally alter the type of safety regulations required by cost-benefit analysis, even for ordinary cases involving low risks. Consequently, any mode of safety regulation that requires an assessment of losses or costs ultimately depends on a prior specification of entitlements. For reasons of history and federalism, the entitlement to physical security in the United States can be derived from the common law of torts. In addition to establishing how costs should be measured, the tort entitlement also quantifies any distributive inequities that would be created by a safety standard and shows how they can be redressed within the safety regulation, thereby enabling federal regulatory agencies to conduct cost-benefit analyses that account for matters of distributive equity as required by Executive Order. When applied in this manner, the tort entitlement to physical security promotes substantive consistency across the different departments of law by serving as the distributive basis for environmental, health, and safety regulations that operate entirely outside of the tort system.
Tuesday, June 17, 2014
Volume 6 of the Journal of Tort Law will contain a tribute to Jeffrey O'Connell, who died in January of 2013. Contributors are: Kenneth Abraham (Virginia), Nora Engstrom (Stanford), Mark Geistfeld (NYU), Bob Rabin (Stanford), Adam Scales (Rutgers-Camden), Tony Sebok (Cardozo), Zoe Sinel (Western Ontario), Ted White (Virginia), and me. John Goldberg graciously arranged the issue, which will appear in spring 2015.
Monday, June 16, 2014
Camille Carey (New Mexico) has posted to SSRN Domestic Violence Torts: Righting a Civil Wrong. The abstract provides:
Friday, June 13, 2014
Ronen Perry & Tal Zarsky (Haifa) have posted to SSRN Liability for Online Anonymous Speech: Comparative and Economic Analyses. The abstract provides:
This is a pre-edited draft of of an article presented in the special session of the Annual Conference on European Tort Law. The article examines various models for handling the problem of online anonymous defamation from comparative and economic perspectives. The comparative analysis reveals four main paradigms. The US model bars content providers’ indirect liability, but facilitates identification of the speaker. The Israeli model recognises content providers’ fault-based liability but does not provide procedural tools for identifying the speaker. The EU framework enables the victim to request identification of the speaker, and at the same time bring an action against the content provider. Although there is variance among Member States, this model seems to comply with the relevant Directives and European court decisions. The recently-adopted English model (‘residual indirect liability’) enables the victim to pursue a claim against the speaker and, if the speaker is unavailable, imposes liability on the content provider.
From an economic perspective, the main problem with exclusively direct liability is that the special effort in identifying and pursuing the anonymous speaker. Additional, yet probably less serious, problems are the high likelihood of judgment-proof defendants and high transaction costs which prevent a contractual transfer of the burden to the content provider when it is the cheapest cost avoider. The drawbacks of exclusively indirect liability are the relatively high cost of precautions, the fact that content providers do not capture the full social benefit of their activity, and the asymmetric legal response to errors with respect to ‘defamatoriness.’ Concurrent liability of the speaker and the content provider overcomes the high cost of identifying and pursuing anonymous speakers, and the problem of judgment-proof defendants. It also induces content providers to facilitate identification of anonymous speakers, increasing the likelihood of internalisation by primary wrongdoers. But concurrent liability has potentially conflicting effects on deterrence, and may result in an aggregation of the implementation costs of both direct and indirect liability. The residual indirect liability regime eliminates (or at least reduces significantly) the need for monitoring, and prevents over-deterrence associated with unaccounted benefits and asymmetric response to errors. It also incentivises content providers to reduce the cost of identifying anonymous wrongdoers, and does not raise the characteristic problems of multiple-defendants. This model may raise some difficulties but they seem either insignificant or solvable, making the English model (with some modifications) the most efficient.
Thursday, June 12, 2014
Thursday, June 5, 2014
Cathy Sharkey (NYU) has posted two pieces to SSRN. First up is Tort-Agency Partnerships in an Age of Preemption. The abstract provides:
At the core of the tort preemption cases before the U.S. Supreme Court is the extent to which state law can impose more stringent liability standards than federal law. The express preemption cases focus on whether the state law requirements are “different from, or in addition to” the federally imposed requirements. And the implied conflict preemption cases examine whether the state law standards are incompatible (impossibility preemption) or at least at odds (obstacle preemption) with the federal regulatory scheme.
But the preemption cases in the appellate pipeline — what I shall term the “second wave” of preemption cases — address a separate analytic question. Their focus is less on the substantive aspects of regulatory standards, and more on their enforcement. When can state tort law impose substantive duties or obligations that are “parallel” to federal requirements without thereby encroaching upon a federal agency’s discretionary enforcement prerogative? This is the new frontier in products liability preemption.
My proposed model suggests that courts facing these new issues should solicit input from federal agencies before resolving them. The model thereby offers a hybrid private-public model for the regulation of health and safety. It advocates an extension of my “agency reference model” to the “enforcement preemption” context: courts should place more emphasis on FDA input when deciding whether tort requirements are “parallel” to federal dictates, and (perhaps even more so) whether, even if they are, they nonetheless infringe on the federal agency’s discretionary enforcement prerogatives. Courts would thus seek guidance from federal agencies to determine whether a private right of action exists for the enforcement, via state law claims, of federal regulations.
Next is Agency Coordination in Consumer Protection, and the abstract provides:
The federalization of consumer protection has created thorny issues of agency coordination. When multiple federal agencies interpret and enforce the same statute, should a single agency’s interpretation be accorded Chevron deference? Should it matter whether it is in synch, or at odds, with its fellow agencies? This Article explores two agency coordination strategies that point in opposite directions. The first, a balkanization strategy, attempts to overcome the overlapping agency jurisdiction problem by urging agencies to create separate, non-overlapping spheres of authority to thereby regain Chevron deference due the agency that reigns supreme. We can expect “agency self-help measures” that stake out respective turfs to emerge from this strategy. Courts have accepted the balkanization approach — carving out discrete fiefdoms from spheres of overlapping agency jurisdiction — and may accept it more readily as the jurisprudence after City of Arlington develops with regard to agency interpretations of jurisdiction.
The second (and more novel) strategy, a model of judicial review as agency coordinator, exploits (rather than constrains) overlapping agency jurisdiction. Under this model, when faced with an interpretation by an agency that operates in shared regulatory space, courts would solicit input from the other relevant agencies. And, to the extent that there is agreement among the different agencies, Chevron deference would be especially warranted (regardless of whether all of those agencies were parties before the court), in sharp contrast to certain courts’ blanket stance that Chevron deference is inappropriate when multiple agencies interpret the same statute.
Monday, June 2, 2014
Journal of European Tort Law, vol 5 issue 1 (2014)
Daily Wuyts ‘The Product Liability Directive More than two Decades of Defective Products in Europe’ (2014) 1 JETL 1
Louis Visscher ‘Time is Money? A Law and Economics Approach to ‘Loss of Time’ as Non-pecuniary Loss’ (2014) 1 JETL 35
Chunyan Ding ‘Development of Employer’s Vicarious Liability: A Chinese Perspective’ (2014) 1 JETL 67
Piotr Machnikowski ‘Sufficiently Serious Breach of a Rule of Law Intended to Confer Rights on Individuals’ (2014) 1 JETL 98
Janno Lahe and Irene Kull ’ Motor Vehicle Operational Risk and Awarding Damages in the Event of a Traffic Accident’ (2014) 1 JETL 105
Gert Brüggemeier ‘Michael Lobban/Julia Moses (eds), The Impact of Ideas on Legal Development(Cambridge University Press, 2012), Comparative Studies in the Development of the Law of Torts in Europe’ (2014) 1 JETL 121
Mark Lunney ‘Paul Mitchell (ed), The Impact of Institutions and Professions on Legal Development (Cambridge University Press, 2012), Comparative Studies in the Development of the Law of Torts in Europe’ (2014) 1 JETL 125
Anthony Sebok 'John Bell/David Ibbetson, European Legal Development: The Case of Tort(Cambridge University Press, 2012), Comparative Studies in the Development 2014) 1 JETL 129
Saturday, May 24, 2014
Georgene Vairo (Loyola LA) has posted to SSRN Lessons Learned by the Reporter: Is Disaggregation the Answer to the Asbestos Mess?. The abstract provides:
Described as an “elephantine mass” that “defies customary judicial administration,” asbestos litigation remains the longest-running mass tort in U.S. history. Ultimately, the efforts made to resolve the ever-expanding asbestos litigation failed. In 1997, in Amchem Products, Inc. v. Windsor, the United States Supreme Court struck down the use of a class action settlement to achieve a global resolution of all asbestos claims — those pending at the time and those of future claimants. In the wake of Amchem, dozens of asbestos defendants sought bankruptcy protection while plaintiffs continued to file claims in state and federal courts. Between 1988 and 2010, a United States Government Accountability Office (GAO) analysis of the approximately 100 bankruptcy trusts’ payment data showed that the asbestos trusts had paid about $17.5 billion to 3.3 million claimants.
Since then, much has happened but basic problems remain. The patchwork system of plaintiffs claiming in federal and state courts, as well as the separate administrative claiming before bankruptcy trusts, raises complicated issues about how injured persons can be properly compensated while assuring that defendants are not assessed damages that are not warranted, and how to protect the trusts from fraud and preserve trust funds for future meritorious claimants.
The American Bar Association Torts and Insurance Section appointed a Task Force to look into issues currently confronting asbestos stakeholders. I was appointed its Reporter. This Article focuses on how the Task Force went about its work and developed a record. It then presents some thoughts on how my service brought together my long-standing academic interest in how mass torts ought to be resolved and the realities of the current asbestos litigation. What I have learned thus far has led me to question my once zealous advocacy of aggregated mass tort claims resolution.
When I served as Chairperson of the Dalkon Shield Claimant’s Trust, I wrote articles that focused on how the Trust resolved hundreds of thousands of claims. It is fair to say that I was a fan of aggregate resolution of mass torts. In my view, the use of multidistrict litigation, class actions, other aggregation tools, and even Chapter 11 reorganization provided fair and efficient vehicles for the resolution of mass torts. Indeed, the Dalkon Shield Board of Trustees expressly adopted motivating principles as they began to put meat on the bones of the CRF. First, and foremost, among these principles, was to “[t]reat all claimants fairly and equally, always focusing on the best interests of claimants collectively instead of on the interests of a particular claimant or group of claimants.” Another principle harkened back to the first: “Prefer settlement and prompt payment of claims over arbitration and litigation.” Rereading these principles in light of the compelling testimony of two of the Task Force witnesses challenged my weltanschauung about mass tort dispute resolution. Judge Robreno’s and Judge Davidson’s testimony about disaggregating cases into their core components, “letting lawyers be lawyers,” and getting cases ready for trial instead of obsessing about global or individual settlements is what led to the successful resolution of the cases before them.
Moreover, Judge Robreno’s testimony suggests that attempts at aggregated resolution of the “elephantine mass” were all failures, except for the MDL itself, which has largely wrapped up its work. Rather, as Judges Robreno and Davidson testified, the disaggregation of asbestos claims allowed asbestos cases to be prepared for trial (or settlement discussions) more expeditiously. Now, dying plaintiffs can get a shot at a prompt trial date rather than having to wait out a global settlement. Perhaps tending to the needs of particular plaintiffs is the best way to protect the interests of the whole in mass tort litigation after all.
Thursday, May 22, 2014
Beth Burch (Georgia) has posted to SSRN Judging Multidistrict Litigation. The abstract provides:
High-stakes multidistrict litigations saddle the transferee judges who manage them with an odd juxtaposition of power and impotence. On one hand, judges appoint and compensate lead lawyers (who effectively replace parties’ chosen counsel) and promote settlement with scant appellate scrutiny or legislative oversight. But on the other, without the arsenal class certification once afforded, judges are relatively powerless to police the private settlements they encourage. Of course, this power shortage is of little concern since parties consent to settle.
Or do they? Contrary to conventional wisdom, this Article introduces new empirical data revealing that judges appoint an overwhelming number of repeat players to leadership positions, which may complicate genuine consent through inadequate representation. Repeat players’ financial, reputational, and reciprocity concerns can govern their interactions with one another and opposing counsel, often trumping fidelity to their clients. Systemic pathologies can result: dictatorial attorney hierarchies that fail to adequately represent the spectrum of claimants’ diverse interests, repeat players trading in influence to increase their fees, collusive private deals that lack a viable monitor, and malleable procedural norms that undermine predictability.
Current judicial practices feed these pathologies. First, when judges appoint lead lawyers early in the litigation based on cooperative tendencies, experience, and financial resources, they often select repeat players. But most conflicts do not arise until discovery and repeat players have few self-interested reasons to dissent or derail the lucrative settlements they negotiate. Second, because steering committees are a relatively new phenomenon and transferee judges have no formal powers beyond those in the Federal Rules, judges have pieced together various doctrines to justify compensating lead lawyers. The erratic fee awards that result lack coherent limits. So, judges then permit lead lawyers to circumvent their rulings and the doctrinal inconsistencies by contracting with the defendant to embed fee provisions in global settlements — a well recognized form of self-dealing. Yet, when those settlements ignite concern, judges lack the formal tools to review them.
These pathologies need not persist. Appointing cognitively diverse attorneys who represent heterogeneous clients, permitting third-party financing, encouraging objections and dissent from non-lead counsel, and selecting permanent leadership after conflicts develop can expand the pool of qualified applicants and promote adequate representation. Compensating these lead lawyers on a quantum-meruit basis could then smooth doctrinal inconsistencies, align these fee awards with other attorneys’ fees, and impose dependable outer limits. Finally, because quantum meruit demands that judges assess the benefit lead lawyers’ conferred on the plaintiffs and the results they achieved, it equips judges with a private-law basis for assessing nonclass settlements and harnesses their review to a very powerful carrot: attorneys’ fees.
Friday, May 16, 2014
Dov Fox (San Diego) & Alex Stein (Cardozo) have posted to SSRN Dualism and Doctrine. The abstract provides:
What kinds of harm among those that tortfeasors inflict are worthy of compensation? Which forms of self-incriminating evidence are privileged against government compulsion? What sorts of facts constitute a criminal defendant’s intent? Existing doctrine pins the answer to all of these questions on whether the injury, facts, or evidence at stake are "mental" or "physical." The assumption that operations of the mind are meaningfully distinct from those of the body animates fundamental rules in our law.
A tort victim cannot recover for mental harm on its own because the law presumes that he is able to unfeel any suffering arising from his mind, by contrast to his bodily injuries over which he exercises no control. The Fifth Amendment forbids the government from forcing a suspect to reveal self-incriminating thoughts as a purportedly more egregious form of compulsion than is compelling no less incriminating evidence that comes from his body. Criminal law treats intentionality as a function of a defendant’s thoughts altogether separate from the bodily movements that they drive into action.
This Essay critically examines the entrenchment of mind-body dualism in the Supreme Court doctrines of harm, compulsion, and intentionality. It uses novel insights from neuroscience, psychology, and psychiatry to expose dualism as empirically flawed and conceptually bankrupt. We demonstrate how the fiction of dualism distorts the law and why the most plausible reasons for dualism’s persistence cannot save it. We introduce an integrationist model of human action and experience that spells out the conditions under which to uproot dualism’s pernicious influence within our legal system.
Thursday, May 15, 2014