Mass Tort Litigation Blog

Actuarial Litigation: How Statistics Can Help Resolve Big Cases

I'm organizing a conference with the University of Connecticut Insurance Law Center called "Actuarial Litigation: How Statistics Can Help Resolve Big Cases" to be held on Friday, April 15, 2011 at UConn.

The participants are an amazing group and there should be a lot of chances for synergy between experts in statistics, experts in law and everyone in between.  Here is the list:

Kenneth R. Feinberg, Feinberg Rozen LLP - who needs no introduction

Robert G. Bone, University of TexasLaw School

Edward K. Cheng, Vanderbilt Law School

Howard Erichson, Fordham Law School

James Grenier, Harvard Law School

Deborah Hensler, Stanford Law School

Samuel Issacharoff, New York University Law School

Joseph B. Kadane, Carnegie Mellon University, Department of Statistics

Francis McGovern, Duke Law School

Adam Scales, Washington & Lee School of  Law

Alex Stein, Benjamin N. Cardozo School of Law

 

ADL

 

 

Ken Feinberg Cover Story in ABA Journal

Reporter Terry Carter provocatively asks, "Is Ken Feinberg changing mass tort law?" in the article, The Master of Disasters. 

BGS

Feinberg to Pay "Bonus" for Release of Some Claims

John Schwartz at the New York Times reports that Ken Feinberg is offering to pay additional sums to those recipients of emergency funding willing to release their claims. Apparently people whose emergency funding fully compensated them can get an additional $5,000 for individuals and $25,000 to release their claims, promising BP that they will not sue.  Feinberg "suggested that the likeliest candidates for the payment might be those who had received emergency funds and had determined that their losses have already been fully covered by the BP fund, or who believe they will not be able to properly document further losses."

The article reports that the fund will provide free legal advice and perhaps additional help in filling out forms to claimants.

ADL

 

Other-Regarding Preferences in the 9/11 Workers Settlement

Reading yesterday’s New York Times article on the 9/11 Workers Settlement, I couldn’t help but think of the other-regarding preferences and psychological influences that played a role in garnering the requisite 95.1% agreement.  The two claimants quoted in the article, Jennifer McNamara (whose firefighter husband died of colon cancer last year) and Kenny Specht, a retired firefighter with thyroid cancer, both framed their ultimate decision to participate in the settlement in terms of helping others within the community of plaintiffs.  As described by the N.Y. Times, McNamara “explained to friends in a letter that she did not want to delay the settlement for the many plaintiffs who needed it to pay mortgages and medical bills.”  Specht said, “I am not sure that holding out for a better offer will ever be something that is attainable.”  

I’ve written about this internal group pressure in the past and how claimants might be able to use it to their benefit as opposed to lawyers using it for theirs.  It does appear that Napoli Bern Ripka LLP held at least one town hall meeting (video footage available below), but I’m not sure whether claimants were encouraged or given opportunities to discuss the deal with one another or whether the lawyers did most of the talking.  Given the claimants geographical proximity to one another in the 9/11 Workers Settlement as well as the closeness of the firefighting and police officers’ communities, it appears that altruism, reciprocity, and a concern for others' well-being within their community played a significant role in members’ decision to approve the settlement (though the settlement did not receive the 100% approval rate that would have paid out $712 million).  Others simply appeared to be exhausted by the protracted litigation and wanted finality.  Still others, at least 520 of them, opted out (or did not respond by the deadline).  A New York Times article last August described several plaintiffs' difficult decision-making process.

 

Although the House of Representatives has approved a bill that would reopen the 9/11 Victim’s Compensation Fund, the Senate has yet to approve it and those who have signed on to the 9/11 Workers Settlement will be ineligible for compensation.  

Here's a link to Napoli Bern's press release (with the percentage of claimants signing-on in each tier).

ECB

 

 

BP Oil Spill Fund to Go Into Operation on Aug. 23, Receives Claims From All 50 States

Bloomberg Businessweek has a thorough article by Jim Snyder, looking at the issues of compensation and remoteness of claims.  So far, BP has paid out $352 million in emergency payments for 114,100 claims, and BP has received a total of 142,400 claims.

BGS

David Wilkins on Globalization, Technology, and the Legal Profession

At the ABA annual meeting on Monday, Professor David Wilkins (Harvard) delivered a fascinating, far-reaching lecture on legal-profession trends, including globalization and technology.  While he only briefly mentioned "tort," the changes he discussed are already appearing in the increase in cross-national mass tort litigation.  In the United States, the growth of mass tort litigation stemmed from increasingly national products, national advertising, and nationally dispersed injured victims.  As markets go global, so too do the problems that lead to mass torts.  The rise of Western-style legal cultures and lawsuits in Asia will likely increasingly turn those mass torts into mass tort litigations -- which will in turn mean that plaintiffs' lawyers will coordinate not just nationally, but internationally; and companies will increasingly turn to defense lawyers as lead counsel not just nationally, but internationally.  (For background, see my 2005 article on litigation networks in the U.S.)  Here's Professor Wilkins' address:

BGS

BP Litigation, Compensation Fund, and Ken Feinberg

The current issue of the ABA Journal has a couple of interesting pieces on the BP litigation: The Price of Oil and The Go-To Mediator.

BGS

New Orleans Judge Carl J. Barbier to Hear BP Oil Spill Cases

Yesterday the Judicial Panel on Multidistrict Litigation issued its much awaited opinion sending the BP Oil Spill cases to New Orleans Judge Carl J. Barbier.  These cases include 77 cases from Louisiana, Alabama, Florida, Mississippi, and Texas.  As the Panel explained in its short opinion, "if there is a geographic and psychological 'center of gravity' in this docket, then the Eastern District of Louisiana is closest to it." (Op. at 3)  

This decision makes it much easier for plaintiffs to participate in the litigation process.  Participating in the court process and in any plaintiffs' group meetings is an important part of procedural justice.  As Ken Feinberg explained in administering the September 11 Victim Compensation Fund, "[g]iving people the opportunity to be heard is very important in helping them cope and move on the best they can." (Tracy Breton, Payments Pending for Fire Victims, Providence J. Bull. Aug. 3, 2008, at 1)  The same is true for the oil spill victims.  Although people litigate for various reasons including money, I suspect that holding BP publicly accountable is certainly part of the motivation behind these suits. 

The Panel sent the shareholder litigation cases to Judge Keith P. Ellison in Houston.  

Here's a round up of stories on the Panel's opinion from around the web:  N.Y. Times, National Law Journal, and Bloomberg.

ECB  

Feinberg to Disclose Compensation for Administering BP Fund

The Associated Press reports that Ken Feinberg announced on Tuesday that he will disclose BP's compensation to him for administering the $20 billion BP oil-spill claims fund, after he had previously stated such information would be "confidential" and "between [him] and BP."  Feinberg now concedes the "perception of a conflict."  Feinberg also said the he might request that than an outsider "with great credibility" set his salary.  (H/t to Ted Frank of the Center for Class Action Fairness for apprising me of this development.)  

On Sunday, July 18, I posted about the possible conflict of interest for Feinberg, arguing that he should disclose his compensation and seek a federal judge to assess his billable hours and rate, as is routinely done in class-action fee requests by class counsel.  My post triggered a short article by Forbes and a post on Legal Ethics forum.  I doubt my post had anything specifically to do with Feinberg's decisionmaking, but I'm happy that he has decided both to disclose his compensation and to seek a reputable third party to oversee his compensation, rather than BP (presumably, BP will agree to whatever the third-party determines).  As I mentioned in my earlier post, I never meant to call into question Feinberg's integrity; rather, I urged this path as a way to help the success of the fund by removing any possible conflict of interest, and I expect that both Feinberg and BP will be happy to put this issue behind them.

BGS

UPDATE -- A Forbes article today discusses my prior blog post and Feinberg's recent decision to disclose his compensation.

Assessing the BP Claims Fund

The Forbes article, BP's Legal Blowout, by Daniel Fisher and Asher Hawkins, looks at the benefits, risks, and remaining issues surrounding the BP claims fund.  I'm quoted in the article's discussion of legal fees.

BGS

Ken Feinberg Compensation for Administering BP Fund -- A Problem and Possible Solution

Today, I saw on Bloomberg Rewind a video of several questions to Kenneth Feinberg, administrator of the $20 billion BP oil-leak compensation fund.  (Video of the interview apparently not yet available on the internet.)  At one point, the reporter asked Feinberg how he would be paid, and Feinberg responded that BP would pay because neither the victims nor taxpayers should have to pay him.  Fair enough.  But when the reporter asked Feinberg whether his compensation would be disclosed, Feinberg said that his compensation "would be confidential."  

The issue of Feinberg's compensation is interesting.  Feinberg worked pro bono on the 9/11 victim compensation fund -- a remarkable and laudable commitment given the substantial time involved.  I'm not suggesting that Feinberg should go on doing such monumental administrative tasks pro bono -- but is it appropriate for him to keep his compensation from BP confidential?  

As with the 9/11 fund, Feinberg will likely have tremendous discretion in fashioning the administrative claim mechanism for the BP compensation fund.  His exercise of discretion could possibly result in BP saving substantial funds, especially if any remainder of the $20 billion fund is to be returned to BP. Accordingly, a fair process at a minimum requires that both the amount of his compensation, and the method of compensation be disclosed publicly.  If BP has the ability to review and cut his billable hours or his billable-hour rate, for example, Feinberg might have a conflict of interest that could lead him unconsciously to favor BP in structuring the administrative fund or making awards.  As a result, in addition to public disclosure, an even better solution might be for BP and Feinberg also to agree to have a federal judge review Feinberg's billable hours, billable-hour rate, and total fee, much as is already typically done by judges reviewing class counsel fee awards in class-action settlements under Rule 23.  See Fed. R. Civ. P. 23(h) ("In a certified class action, the court may award reasonable attorney's fees and nontaxable costs that are authorized by law or by the parties' agreement."). 

I of course do not mean in any way to call into question Feinberg's integrity; he is widely viewed as the nation's leading claims administrator.  But even federal judges have their compensation set publicly and in a manner that could not be said to incentivize them to favor one litigant over another.  We would never approve of a judge being paid confidentially by only one litigant -- and we shouldn't here either, especially when the claims structure could be seen as quasi-public in light of the President's central involvement and comments that "[i]n order to ensure that all legitimate claims are paid out in a fair and timely manner, the account must and will be administered by an independent, third party."  Ultimately, removing the issue of Feinberg's fees from any controversy would aid Feinberg in making the BP fund a success. 

BGS    

UPDATE -- Professor Andrew Perlman (Suffolk) comments at Legal Ethics Forum on my post above.

UPDATE #2 -- Forbes' On The Docket blog discusses my post above: Feinberg's BP Pay: Should It Be Disclosed?, by Daniel Fisher.

Social Networking and Class Actions

Both the ABA Journal and the Wall Street Journal have articles in today's news about the use of social networking as a legal tool.  The ABA Journal notes that law firms' websites are "set up to resemble community forums or news boards."  But a closer look at the forums shows that they're principally meant for client recruitment and information dissemination.  For example, Sokolove Law's website Yaztalk.com has created a Facebook group (with an empty "discussion" board) where it poses questions as posts, such as "Do you know your clot risk."  Its main website has a chat function and a form for requesting a free legal consultation. Thus, both the website and the Facebook page seem focused on client recruitment, not building communities.  The Wall Street Journal's report confirms as much in this short excerpt: "'Young ladies spend a lot of their time online, socializing through social media,' said Michael Skoler, [Sokolove's] chief marketing officer.  The YazTalk.com site, which includes a sign-up form for legal consultation, has netted hundreds of clients, he said.  'The folks who reach us through social media are twice as likely to become clients as those who would reach us through television or print."

As someone who has written extensively about the power of social media to connect claimants in nonclass aggregation, allow them to discuss the litigation's progress and their particular ends with one another, and, ultimately, to make decisions and exercise client control, I have mixed reactions to websites like Yaztalk.com.  

On one hand, the sites do a nice job of educating the public on alleged drug risks.  Similar sites such as bigspills.com keep the public abreast of news developments in the growing BP oil spill.  Sites like these provide a notice function (albeit one that is largely one-sided), which is an admirable public service.  Other sites like Napoli Bern's site for the First Responders' 9/11 litigation (www.877wtchero.com) provide litigation documents, legal news, transcripts of judicial hearings, frequently asked questions, and all of the pertinent settlement documents.

On the other hand, despite the Wall Street Journal's quote that "[w]ith sites like Facebook and Twitter, it has become easier for firms to 'build targeted communities and to network within those communities,'" I see little evidence of genuine community.  But I also see tremendous potential.  As I wrote recently in Litigating Together: Social, Moral, and Legal Obligations, "Technology has changed the way we interact with one another socially, but it has also provided a means for facilitating traditional face-to-face interaction.  Plaintiffs might use these new communication media to set up regional face-to-face meetings, discuss key decisions, receive attorney updates and recent court documents, pose questions, tell their stories, and generally keep in touch with one another.  In short, this kind of technology makes it easier for geographically dispersed plaintiffs to coordinate initial meetings and, subsequently, to communicate, deliberate, and bargain with each other." (at 32)  Giving litigants a voice in the decision-making process (through communicating with one another and voting on major litigation decisions) furthers litigants' faith in the judicial system and makes it less likely that they'll collaterally attack the result.

So, while I applaud the use of technology, I do hope that it can be deployed in more meaningful ways that extend beyond client recruitment to allow claimants to communicate with each other.  (Of course, to the extent that it includes privileged information, it would need to be password protected and include appropriate security measures.)

If you're interested in the use of technology in class actions, you might also take a look at an article by Bob Klonoff, Mark Herrman, and Brad Harrison titled "Making Class Actions Work: The Untapped Potential of the Internet."

ECB

(h/t Jason Solomon)

Profile of WTC Litigation Judge in the NYTimes

Mireya Navarro of the New York Times wrote an article published on Sunday about Judge Alvin Hellerstein who is overseeing the 9/11 World Trade Center Disaster Site litigation, and who now famously came out against the proposed settlement in that case.  The article is called "Empathetic Judge in 9/11 Suits Seen By Some As Interfering." 

The theme of the article is Judge Hellerstein's empathy for these special victims.  Some legal experts, Navarro  writes, say that he was acting outside of his judicial capacity -- "such intervention is not the norm outside the class action."

While Judge Hellerstein's actions in this case are very public and the subject of a great deal of interest, its not clear to me that there is a difference between what he did and what judges usually do.  As I see it, the litigants here (or the lawyers more precisely) are trying to put together the kind of settlement that Merck and the plaintiffs lawyers were able to put together in Vioxx.  In that case, the litigants sought Judge Fallon's approval for the settlement, which was controversial.  Judge Fallon's approval - especially because he is a thoughtful, intelligent and well-respected federal judge - was critical to the success of that settlement.  I asked him once why, if it wasn't a class action, his approval was needed.  He replied in sum and substance that the parties wouldn't proceed without his approval.

The WTC lawyers wanted Judge Hellerstein's approval for the same reasons the Vioxx lawyers did - he is a thoughtful, intelligent and well respected federal judge.  His approval of the settlement would give it gravitas; it would make plaintiffs whose lawyers weren't involved in drafting it want to sign on; it would make plaintiffs who had no way of knowing what they would get at the end of the day agree to buy a pig in a poke because they could trust the process.  The lawyers didn't get the Judge's sign-on.  It seems that with their appeal to the Second Circuit they are saying he acted beyond the scope of judicial power now that they got a response from the judge that they didn't like.   

But how is this different than a settlement conference in an ordinary case when the judge opines that a settlement is not giving the plaintiff enough?  After all, the parties came to Judge Hellerstein.  They could settle the cases individually and dismiss them one after the other as settlement is reached.  If they chose to dismiss their individual cases, its not clear to me that there is anything Judge Hellerstein could do other than to tell the client he thought that was a bad idea.  But if the lawyers want an aggregate settlement and they want a Judge to give them legitimacy, then they have to face the reality that he will only legitimate a settlement he thinks is appropriate under the circumstances. 

EDITED TO ADD:  You can find the documents regarding the appeal on the Napoli Bern website.

ADL

Sebok on Alienation of Claims

Tony Sebok (Cardozo) has posted his piece "The Inauthentic Claim" to SSRN.  This is a very important paper arguing against the usual rule limiting types of litigation financing.  The implications of the thesis for mass torts is significant.  If people could sell lawsuits the landscape of aggregate litigation would change in significant ways. Here is the abstract:

This Article argues that third parties should be able to invest in lawsuits to a much greater degree than is currently permitted in most jurisdictions in the United States. The laws of assignment and maintenance limit the freedom of litigants to sell all or part of their lawsuits to strangers. I argue in the Article that the foundation of both doctrines is based on something I call the theory of “the inauthentic claim.”

The theory of the inauthentic claim asserts that there is a quality, separate and in addition to legal validity, which confers “authenticity” to a lawsuit. It does not presuppose that “inauthentic” lawsuits are more likely to be spurious, fraudulent, or frivolous than “authentic” lawsuits. It holds, instead, that the mere fact that a third party involved him or herself in the suit for the wrong reasons (either by taking an assignment in the suit or supporting the suit), is proof that the suit is against public policy.

This Article examines two arguments that might be used to defend the theory of the inauthentic claim, one from history and one from jurisprudence. I conclude that neither argument is persuasive. I conclude the Article by sketching a research agenda based on empirical evidence that would help policymakers and judges choose the socially optimal set of rules for third party investment in litigation.

ADL

(h/t Chris Robinette at  Torts Prof Blog)

ACI Conference on Chemical Products Liability and Environmental Litigation

American Conference Institute will be hosting a conference on Chemical Products Liability and Environmental Litigation on April 28-29, 2010 in Chicago, IL.  I will be speaking on mass torts and ethics, with particular attention to the ethics of mass settlements.  Here's the brochure (Download ACI Brochure).  

BGS

Panel on Pluralism in Tort Law and Litigation at Annual Conference of the Association for the Study of Law, Culture and the Humanities

As previously mentioned, I was part of a panel on Pluralism in Tort Law and Litigation at the annual conference of the Association for the Study of Law, Culture and the Humanities, which took place on Saturday, March 20 at Brown University.  Professor Alan Calnan (Southwestern) moderated the panel, and other participants included Professors Christopher Robinette (Widener) and Sheila Scheuerman (Charleston).  Below are the abstracts and links to audio from the presentations and Q&A.  Thanks to Alan Calnan for moderating and to all for participating.

***

I.  Prof. Alan Calnan -- Introduction (audio)

II.  Prof. Christopher Robinette -- "The Instrumentalism in Tort Reforms" (audio)

The traditional view among legal historians is that tort was largely deontic private law until the late nineteenth century.  Due to factors such as the Industrial Revolution and the advent of liability insurance, tort became (more) instrumentalist.  A survey of major tort reforms over the course of the last century provides evidence to support this view.  Each of the reforms--workers' compensation, no-fault automobile insurance, products liability, and "modern" tort reforms (such as damage caps)--is based in instrumentalism.  Furthermore, the reforms become increasingly integrated into tort law as time passed.  The earliest reform, workers' compensation, was a substitute for tort law.  By the time of the modern reforms, instrumentalism is operating within tort itself, and covers a multitude of tort cases.

III.  Prof. Byron Stier -- ""Examining Litigant Autonomy in Mass Torts: Insights from the Individualism of Ayn Rand" (audio)

Class actions and other aggregate procedural methods raise questions about the relationship of the individual to the group.  Litigant autonomy -- the litigant's interest in controlling his or her lawsuit -- has generally been considered merely one value among others in mass tort litigation, and only recently has a robust commitment to litigant autonomy been seen to call into question the entire structure of class action practice.  In looking for insight into the proper place for litigant autonomy in class actions or other management methods, we might fruitfully turn to political debates concerning the relationship of the citizen to the state, for both settings examine the rights of the individual against the perceived needs of the group or collective.  For discussion of that political question, I look to an unusual source -- outside law, to the literature of one known for her radical political individualism, Ayn Rand.  Her novel, "We The Living," which was published in 1936 and is set in the aftermath of the communist revolution in Russia, puts forth a moral argument for individualism stemming from the sanctity of one's own life, and of one's control of one's own life, for one's own ends, not the group's; she also argues that personal tragedy and systemic corruption accompany an approach that fails to respect individuals' lives and choices.  Turning back to mass tort litigation, I suggest that our notion of litigant autonomy can be informed by Rand's themes and that current class action rules show flaws similar to the collectivism that Rand critiques. Viewing litigant autonomy not merely as one value among others, but instead as an organizing principle that must be respected as a core right, I suggest that current class action rules regarding notice, opt-out, and settlement are problematic because they do not allow adequate expression of individual preference and they blunt each class member's individuality.  In addition, by avoiding individual control, the current class action rules create fertile ground for corruption and collusive settlements.

IV.  Prof. Sheila Scheuerman (audio)

In my presentation, I examine whether and when tort law should permit
"no injury" claims -- claims where the plaintiff's harm has not yet
materialized.  Examples of these suits include medical monitoring
actions, products liability claims where a known defect exists, but the
product has not yet malfunctioned, as well as consumer fraud claims
where the consumer's decision was not affected by the defendant's
alleged misrepresentation.  Recent years have seen an influx of these
suits under an array of tort and contract theories.  Traditionally,
however, tort doctrine has premised liability on an injury to an
identified party.  But is "injury" a necessary pre-requisite?  I address
whether tort values support these "no injury" causes of action.  In
other words, should "no injury" claims be actionable under the varied
rationales for the tort system and, if so, under what circumstances?

V.  Questions and Answers (audio)

***

BGS

Litigating Together: Social, Moral, and Legal Obligations

I have posted a draft of the last in a trilogy of articles on nonclass aggregation and thought I would provide a brief retrospective for the interested reader.  The first article in the trilogy is Procedural Justice in Nonclass Aggregation, which explains in-depth the problems and risks presented by nonclass aggregation.  It observes that systemic legitimacy and compliance with judicial decisions hinges on ensuring procedural justice, but that our current system for handling large-scale litigation fails to provide a number of key procedural-justice components including the preference for adversarial litigation, participation opportunities, impartiality, and error correction.  These institutional shortcomings are due in large part to the trade-offs inherent in large-scale litigation.  Those trade-offs include that "litigation is no longer adversarial despite litigants’ preferences, but effective individual litigation is too costly to pursue; aggregate settlements provide few participation opportunities and no avenues for appeal or error correction despite potential conflicts, but, without aggregate settlements, cost and delay could be staggering and the relief may come too late; mediators or special masters might afford claimants additional participation opportunities, but process is then less adversarial and may suffer from legitimacy problems."  Id. at 46. 

The second article in the trilogy is Litigating Groups. In Litigating Groups, I laid the theoretical groundwork for an alternative to our current approach by borrowing insights from other disciplines—social psychology, moral and political philosophy, and behavioral law and economics—and bringing those notions of commitment, community, and groups to bear on nonclass aggregation.  By relying on the other-regarding preferences that tend to form from group membership, I argued that groups of plaintiffs may have or could be encouraged to develop organic or indigenous origins such that they form moral obligations to one another that are reinforced by social and personal norms. (I have also summarized these contentions in a short response to Judge Weinstein - A New Way Forward: A Response to Judge Weinstein.)

The current (and latest) article is the third and final piece in the trilogy.  It's titled Litigating Together, Social, Moral, and Legal Obligations.  This Article translates the theoretical foundation laid in Litigating Groups into concrete, feasible procedures for litigating together.  Although Litigating Groups maintained that plaintiffs who form groups will likely develop other-regarding preferences toward their fellow group members, it did not fully formulate procedures for promoting cooperation and group formation; decide when, whether, or how to impose sanctions when norms and moral obligations fail; contemplate incentives to join the group; or determine when exiting the group is appropriate.  Accordingly, this Article takes up those hard questions as well as the challenge of determining whether and how substantive and procedural law should enforce moral obligations once a certain level of moral interconnectedness exists.  Here's the SSRN abstract:

In a post-Class Action Fairness Act world, the modern mass-tort class action is disappearing. Indeed, multi-district litigation and private aggregation through contracts with plaintiffs’ law firms are the new mass-tort frontier. But something’s amiss with this “nonclass aggregation.” These new procedures involve a fundamentally different dynamic than class actions: plaintiffs have names, faces, and something deeply personal at stake. Their claims are independently economically viable, which gives them autonomy expectations about being able to control the course of their litigation. Yet, they participate in a familiar, collective effort to establish the defendant’s liability. They litigate from both a personal and a collective standpoint.

Current scholarship overlooks this inter-personal dimension. It focuses instead on either touting the virtues of individual autonomy or streamlining mass litigation to maximize social welfare. Both approaches fail to solve the unique problems caused by these personal dimensions: temptations for plaintiffs to hold out and thus derail settlements demanding near unanimity, outliers who remain disengaged from the group but free-ride off of its efforts, and subgroups within the litigation whose members compete for resources and litigation dominance to the group’s detriment. Accordingly, this Article has two principal objectives: one diagnostic, one prescriptive. The diagnosis is this: current procedures for handling nonclass aggregation miss the mark. Process isn’t just an exercise in autonomy or a handy crutch for enforcing substantive laws. Procedures can serve as a means for bringing plaintiffs together, plugging their individual stories into a collective narrative, making sense of that narrative as a community, reasoning together about the right thing to do, and pursuing that end collectively. Thus, the prescription is litigating together.

Along the way, I've developed a few aspects of this overall project in greater detail for various symposia:

 In Aggregation, Community, and the Line Between, I provided a more detailed account of the moral and political theory animating this "litigating together" approach.  This article contends that encouraging plaintiffs to form groups and reach decisions through deliberation relies on a mix of individual consent and moral obligation. Allowing plaintiffs to exercise their free will when deciding whether to associate with others preserves the liberal tenet of self-determination and escapes the anti-democratic criticism leveled at class actions. Yet, a purely liberal approach fails to capture the obligatory aspect of reciprocal promises to cooperate and the communal obligations that attach. Although plaintiffs voluntarily enter into the group, once they are group members and have tied together their collective litigation fates, they should not be permitted to exit when doing so violates their commitments. Of course, the community itself determines the content of its members’ rights and obligations to one another. Thus, the article concludes by explaining the rationale for group autonomy in terms of pluralism and communitarianism. 

In Group Consensus, Individual Consent (which is still very much "in progress," as they say), I explore how this project relates to sections 3.17 and 3.18 of the American Law Institute’s Principles of the Law of Aggregate Litigation and use those principles as a lens for exploring thematic questions about the value of pluralism, group cohesion, governance, procedural justice, and legitimacy in nonclass aggregation.  Both this project and Litigating Together: Social, Moral, and Legal Obligations are still very much in progress, so, as always, I welcome your comments. 

I'm extremely grateful for all of the helpful comments and criticisms of so many scholars in the field along the way.  I'm also looking forward to tackling new and different projects that have been waiting in the wings for some time now.

ECB

ASLCH Annual Conference and Presentation on "Examining Litigant Autonomy in Mass Torts: Insights from the Individualism of Ayn Rand"

On Saturday, March 20, I'll be speaking as part of a panel on "Pluralism in Tort Law and Litigation" at the annual meeting of the Association for the Study of Law, Culture, and Humanities, at Brown University in Rhode Island.  The panel will be moderated by Professor Alan Calnan (Southwestern), and other presenting panelists are Professors Christopher Robinette (Widener) and Sheila Scheuerman (Charleston). A podcast of the panel may later be posted on this blog.  Given the conference's focus on culture and humanities, my talk draws upon literature and political theory.  Here's the abstract for my talk:

Byron Stier -- "Examining Litigant Autonomy in Mass Torts: Insights from the Individualism of Ayn Rand"

Class actions and other aggregate procedural methods raise questions about the relationship of the individual to the group.  Litigant autonomy -- the litigant's interest in controlling his or her lawsuit -- has generally been considered merely one value among others in mass tort litigation, and only recently has a robust commitment to litigant autonomy been seen to call into question the entire structure of class action practice.  In looking for insight into the proper place for litigant autonomy in class actions or other management methods, we might fruitfully turn to political debates concerning the relationship of the citizen to the state, for both settings examine the rights of the individual against the perceived needs of the group or collective.  For discussion of that political question, I look to an unusual source -- outside law, to the literature of one known for her radical political individualism, Ayn Rand.  Her novel, "We The Living," which was published in 1936 and is set in the aftermath of the communist revolution in Russia, puts forth a moral argument for individualism stemming from the sanctity of one's own life, and of one's control of one's own life, for one's own ends, not the group's; she also argues that personal tragedy and systemic corruption accompany an approach that fails to respect individuals' lives and choices.  Turning back to mass tort litigation, I suggest that our notion of litigant autonomy can be informed by Rand's themes and that current class action rules show flaws similar to the collectivism that Rand critiques. Viewing litigant autonomy not merely as one value among others, but instead as an organizing principle that must be respected as a core right, I suggest that current class action rules regarding notice, opt-out, and settlement are problematic because they do not allow adequate expression of individual preference and they blunt each class member's individuality.  In addition, by avoiding individual control, the current class action rules create fertile ground for corruption and collusive settlements.

BGS

9/11 First Responders Settlement - "Fairness Hearing" April 12

Judge Hellerstein has scheduled a "fairness hearing" in the 9/11 First Responders Settlement (the case is known as In re World Trade Center Disaster Site Litigation) to take place on April 12, the New York Times Reports.  Next Friday (3/19) he will meet with the parties to give them his impressions of the settlement.  The judge also said he may reduce attorneys fees awards to as low as 15% (from the 30% that most retainer agreements require). 

Kenneth Feinberg, the special master overseeing the 9/11 Victim's Compensation Fund is reported as saying that the only reason these workers weren't compensated under that fund was that they had not fallen ill when the fund closed in 2003.  I predict the compensation will try to mirror what that fund did.  Feinberg's dissatisfaction with that process, which he handled very well, is chronicled in his book What Is Life Worth?

I have it on good authority that the federal government was considering reopening the 9/11 fund to deal with these cases, but the settlement has mooted that idea (and whether it would have actually come to pass is an open question). 

An unnamed tort management firm has already been appointed to handle the claims. The administrator in charge of evaluating cases and meting out awards will be appointed in a few weeks. 

The Times article can be found here: Hurdles Remain for Ground Zero Settlement.

ADL

Rough Justice and the Problem of Value in Tort Law

Following on Prof. Erichson's footsteps, I have just posted a draft  article entitled "Rough Justice and the Problem of Value in Tort Law."  You can find it on SSRN and bepress.

This article can be read in dialogue with Erichson and Zipursky's argument against lawyer empowerment in the mass tort context (see their article "Consent versus Closure" described in the post below).  Their baseline is the individual case which ostensibly is run by the litigant as compared to the mass tort context in which lawyers are empowered to determine outcomes.  I demonstrate that in the individual case lawyers are setting the price of settlement with reference to other cases without rigorous methodology, leading to inequity.  In the mass tort context, we have the possibility to adopt transparent, rigorous methods that ensure horizontal equity, a central principle of procedural justice.

This article is also a response to concerns about variability in jury verdicts. I have blogged about these issues here and here and refer readers to Tim Lytton's post on Tort Profs Blog and Byron Stier's work on "Jackpot Justice." We have very different views on what variability in tort verdicts really means!

Below is the abstract of my piece.  If you read the draft and have comments, please send them along.

This Essay argues the counterintuitive position that in our tort system, individual justice is rougher than justice on a mass scale. The reason for this is that mass tort cases can be resolved collectively using rigorous transparent social science methods that can ensure equal treatment of similarly situated litigants. Individual justice, by contrast, allows cases to be resolved in a largely hidden system of comparative valuation using loose methods that are unlikely to result in like cases being treated alike. To do justice courts must use rigorous, transparent methods of case valuation.

In addition to this key insight, this Essay makes two contributions. First, it demonstrates a pragmatic way of thinking about procedural justice by measuring existing procedures against widely recognized principles. In this case, I compare sampling procedures with principles of equality, fairness and distributive justice. Second, it uncovers a pernicious assumption that has been heretofore ignored by scholars: contrary to popular belief, there is no objective way to monetize injuries. All justice in tort cases is rough justice. This is the problem of value in tort law. The solution to this problem is properly administered sampling procedures.

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