Mass Tort Litigation Blog

5th Annual Civil Procedure Workshop Call for Papers

The University of Texas will be hosting the 5th Annual Civil Procedure Workshop on October 25-26, 2019.

The CPW gives both emerging and established civil procedure scholars an opportunity to gather with colleagues and present their work to an expert audience. Scholars will present their papers in small panel sessions. A senior scholar will moderate each panel and lead the commentary. In addition to paper presentations, we intend to engage members of the judiciary and federal civil rulemaking bodies in discussions about current developments in procedure.

Our ongoing goal is for the CPW to strengthen the study of procedure as an academic discipline, and to deepen ties among the academy, rulemakers, and the judiciary.

Confirmed participants for 2019 include Kevin Clermont, Mechele Dickerson, J. Maria Glover, Tara Leigh Grove, Olatunde Johnson, Linda Mullenix, James Pfander, Charlie Silver, Shirin Sinnar, Steve Vladeck, and Patrick Woolley. We welcome all civil procedure scholars to attend. Those wishing to present a paper for discussion should submit a two-page abstract by March 15, 2019.

While we welcome papers from both emerging and senior scholars, preference may be given to those who have been teaching for less than ten years. We will select papers to be presented by April 22, 2019. Please send all submissions or related questions to Bob Bone.

The CPW will provide meals for registrants. Participants must cover travel and lodging costs. We will provide information about reasonably priced hotels as the date approaches. Feel free to contact us with questions.

Bob Bone (UT Austin), [email protected]

Dave Marcus (UCLA), [email protected]

Liz Porter (UW), [email protected]

Brooke Coleman (Seattle U), [email protected]

Sarah Swan on Preempting Plaintiff Cities

Professor Sarah L. Swan (Florida State Law) has posted to SSRN her manuscript, Preempting Plaintiff Cities, Fordham Urb. L. J. (forthcoming).  Here is the abstract:

Within the city-state relationship, states hold an enormous amount of power. Recently, states have been using that power to pass extremely aggressive preemption laws that prohibit cities’ regulatory efforts on many fronts. These new preemption laws most commonly occur in the context of red states limiting the regulatory scope of blue cities, inflaming those already tense city-state relationships and cutting into what many view as the appropriate scope of local autonomy.

But despite this intense clash in the regulatory sphere, when we move away from the world of city regulation and toward the world of city litigation, things look surprisingly different. Although cities have been bringing forward hundreds of quite controversial claims against corporate wrongdoers for harms ranging from the subprime mortgage crisis to the opioid epidemic, such plaintiff city litigation has provoked relatively little state hostility. States have not ratcheted up their response to this exercise of city power in at all the same way as they have for regulation. Rather, states have shown a remarkably limited appetite for preempting plaintiff city litigation.

What accounts for these differing responses? Three main factors are likely in play. First, while regulatory preemption is largely the result of intense political polarization, states have historically viewed litigation against corporate wrongdoers in less partisan terms. Both blue and red states have themselves engaged in this type of litigation, and there is thus an institutional tradition of flexibility in this context. Second, and relatedly, the issues at the heart of plaintiff city litigation are often not as politically divisive as those at the heart of the preempted regulations. Harms like lead paint poisoning and the opioid epidemic have attracted widespread condemnation, while many of the regulation preemption subjects remain hotly contested. Finally, unlike regulation, litigation is not an obvious instrument of governance. It has unpredictable outcomes, it is not an exclusively governmental power, and it relies on existing law.

Since plaintiff city litigation operates mostly outside of state crosshairs, it can provide a space for cities looking to pursue progressive goals. Plaintiff city litigation may not achieve the same immediate governance goals as regulation, but it does have significant political benefits for cities and their residents. Thus, even in an era of rampant regulatory preemption and deep political animosity between cities and states, plaintiff city litigation presents a viable parallel track for cities to continue their pursuit of urban social justice. Although such litigation does not directly address the contentious issues forming the basis of regulatory battles, it does offer a means of protecting vulnerable communities and advancing goals of democratic equality in other ways.

Nikki Chamberlain on Class Actions in New Zealand

Professor Nikki Chamberlain (University of Auckland) has posted her article, Class Actions in New Zealand: An Empirical Study, 24 New Zealand Bus. L. Q. 132 (2018).  Here is the abstract:

This article contains the first empirical study on opt-in class actions, which are referred to as representative actions, filed under r 4.24 of the High Court Rules 2016 in the New Zealand High Court and the New Zealand Employment Court. The findings of this study reveal that opt-in class actions are now part of the New Zealand legal landscape in substance, if not in name. In particular, the data reflects the rise of consumer class actions in New Zealand, which, in part, have been assisted by litigation funders entering into the market. However, despite an increase in opt-in class actions, New Zealand’s civil procedure mechanism for managing class action litigation is inefficient, uneconomic and creates significant uncertainty for all class action stakeholders. This article examines the empirical data, the trends in the data, and the reasons for those trends. It concludes by discussing why reform is required against the backdrop of this study and New Zealand’s procedural process values as contained in the High Court Rules.

 

Eri Osaka on the Fukushima Nuclear Disaster Compensation Scheme

Professor Eri Osaka (Toyo University) has posted to SSRN her manuscript, Current Status and Challenges in the Fukushima Nuclear Disaster Compensation Scheme: An Example of Institutional Failure?  Here is the abstract:

The Fukushima Nuclear Disaster brought widespread and long-term damage. Soon after the accident, the government hastily set up the Fukushima nuclear disaster compensation scheme under the existing law to deal with a large number of compensation claims by the victims. It published the compensation guidelines and established the nuclear damage alternative dispute resolution (ADR) process to promote the voluntary efforts by Tokyo Electric Power Company　(TEPCO) as well as victims to resolve their nuclear damage disputes. It also has been pouring public money into TEPCO.

This paper examines whether the scheme has been functioning well, in other words, whether the victims have been compensated through the scheme. Section 2 gives an overview of the scheme. It begins with the Act on Compensation for Nuclear Damage, the basis of the current scheme. Next it explains the responsibilities fulfilled by the government and TEPCO under the scheme. It also briefly addresses the current discussion on the scheme reform. As it turns out, the current scheme is far from successful. Then, Section 3 focuses on litigation as a realistic tool to change the malfunctioning scheme under existing conditions. It introduces a discussion of the current development of cases pursuing just and equitable relief for the nuclear damage victims. However, litigation is not a panacea. Section 3 also discusses its obstacles and possible solutions.