Mass Tort Litigation Blog

Engle's Progeny

On November 26 the Supreme Court denied cert in RJ Reynold Tobacco Co. v. Clay, an appeal from a Florida state court decision to give the Engle court ruling preclusion effect.

Engle, recall, is the tobacco issue class action certified and upheld by the Florida Supreme Court. Does the denial of cert pave the way for issues class actions to flourish (at least for the moment) or is this just not the right vehicle? 

See Scotusblog for a summary and links.  ADL

The New Class Action Landscape

Prof. John C. Coffee and I have posted "The New Class Action Landscape: Trends and Developments in Certification and Related Topics" on SSRN.

This is a memorandum that provides an overview of the trends and highlights in class certification rulings from 2012.  Its going to be another interesting year for class actions at the Supreme Court and we provide a summary and evaluation of the upcoming cases, in addition to highlighting appellate and district court cases of interest.

ADL

Lawyering for Groups symposium

On Friday, Nov. 30, Fordham Law School will host a symposium entitled Lawyering for Groups: Civil Rights, Mass Torts, and Everything in Between. Organized by Benjamin Zipursky and myself, the conference participants include Elise Boddie, Elizabeth Burch, Kristen Carpenter, Brian Fitzpatrick, Bruce Green, Samuel Issacharoff, Alexandra Lahav, Troy McKenzie, Nancy Moore, Russell Pearce, Theodore Rave and Eli Wald. It is co-sponsored by the Stein Center for Law and Ethics and by the Fordham Law Review, which will publish the papers.

As I read the authors' drafts in preparation for the symposium, I am struck by how difficult the fundamental questions remain. What does it mean, really, for a lawyer to represent a group of similarly situated claimants? Is it a bundle of individual lawyer-client relationships, or is it better understood in practice as a relationship between a lawyer and a group, with the primary duty owed to the group as a whole?  Does class certification fundamentally change the nature of the representation, or in some cases is the class action better understood as an acknowledgement of the reality of mass representation and the imposition of a set of procedural protections? 

I am struck, as well, by how these questions transcend any particular area of practice. The symposium grew out of Ben Zipursky's and my shared interest in the ethics of group lawyering. He and I have lectured to mass tort lawyers on ethics in mass tort litigation, as well as to civil rights lawyers on the ethics of civil rights litigation. Each area brings its own challenges, but the core questions about collective representation apply to both. Convinced that these issues deserve attention, we pulled together a group of proceduralists and ethicists with widely varying views on aggregate litigation and different areas of expertise. I'm looking forward to learning a lot. The agenda is here.

HME

Call for Papers: "The Public Life of the Private Law: The Logic and Experience of Mass Litigation" A Conference in Honor of Richard A. Nagareda

Here's the announcement from Vanderbilt Law School:

Vanderbilt Law School announces a conference in honor of the late Richard Nagareda, the David Daniels Allen Distinguished Chair in Law and founding Director of the Cecil D. Branstetter Litigation and Dispute Resolution Program.  “The Public Life of Private Law: The Logic and Experience  of Mass  Litigation”  Conference will be held  on  September 27  and  28,  2013,  at  Vanderbilt  and  is  jointly  sponsored  by  the  Branstetter  Program, the Journal of Tort Law, and the University of Texas Center on Lawyers, Civil Justice, and the Media.   Conference organizers are Tracey George (Vanderbilt), John Goldberg (Harvard), Sam Issacharoff (NYU), and Charlie Silver (Texas). We invite junior scholars to submit paper proposals for the conference by February 15. 

In  the  spirit  of  Oliver Wendell Holmes, Richard  Nagareda  devoted  himself  to studying the life of the law‐‐the law as it actually plays out in lawyer‐client relationships, the  maneuvering  of  adversary  litigation,  the  efforts  by  judges  to  manage  an  unruly litigation  process,  and  the  construction  of  elaborate  settlement  agreements  that  now dominate the modern landscape of civil litigation.  Yet despite his relentless focus on the “realities” of civil litigation, Richard never fell prey to skepticism about law.  Indeed, he insisted that lawyerly efforts to fashion new claims and new forms of dispute resolution are and  should  be  shaped  by  substantive  law, the  rules  of  professional  responsibility,  and ultimately principles of administrative law.   The hallmark of his work is its commitment to taking seriously both the logic and the experience of mass tort law and complex litigation.  

This conference pays homage to Richard’s scholarship by inviting a new generation of  scholars  to  address  topics  and  concerns  related  to  his  work.      Each  panel  will  be organized around a junior scholar’s paper with senior scholars commenting on papers. Senior scholars will include Lynn Baker, Bob Bone, Beth Burch, Brian Fitzpatrick, Tracey George, Myriam Gilles, John Goldberg, Sam Issacharoff, Bill Rubenstein, Suzanna Sherry, Charlie Silver, and Patrick Woolley.     All papers and comments will be published in the Journal of Tort Law.  

If  you  are  a  junior  scholar  interested  in  participating,  please  submit  a  five‐page paper proposal to [email protected] no later than February 15.   If your proposal is accepted, we will inform you by March 15.   All travel expenses will be covered for invited  junior  scholars.   If  you  have  any questions,  please  email  Branstetter Director Tracey George ([email protected]). 

ECB

Vanderbilt's New Voices in Civil Justice Workshop

Vanderbilt is conducting its annual New Voices in Civil Justice Workshop on May 6-7 and has issued a call for papers.  Papers should be submitted by January 1, 2013.  Both Alexi and I participated last year and I can attest that it's a great program and a wonderful way for junior scholars to receive feedback from senior folks in the field in a relaxed environment.  (Plus, Nashville is lovely in the spring if you need an additional reason to submit a paper!)  Here's the information from Vanderbilt and a link to the program website:

Vanderbilt Law School’s Cecil D. Branstetter Litigation & Dispute Resolution Program holds an annual New Voices in Civil Justice Workshop in the spring. Junior scholars’ works are selected based on an anonymous review of an outstanding group of papers submitted for consideration. A senior scholar briefly introduces and comments on each paper before opening the session up to discussion about the work. The senior scholars typically include Branstetter faculty and several distinguished visitors.

The Branstetter Program draws on a multimillion-dollar endowment to support research and curriculum in civil litigation and dispute resolution. The New Voices workshop brings together junior scholar authors, invited senior scholars, and Vanderbilt faculty in the areas of civil justice.

This year, four junior scholars will be selected via a blind review process to present at the New Voices Workshop. The 2013 New Voices in Civil Justice Scholarship Workshop will be held at Vanderbilt Law School on May 6-7, and the Branstetter Program invites submissions for the workshop.

The New Voices format maximizes collegial interaction and feedback. Paper authors thus do not deliver prepared “presentations” as such. Rather, all participants read the selected papers prior to the session, and at each workshop, a senior faculty member provides a brief overview and commentary on the paper. Open and interactive discussion immediately follows.

ECB