Tuesday, December 1, 2009
My most recent paper, Aggregation, Community, and the Line Between, is now available on SSRN. This paper continues to develop to my larger project on nonclass aggregation, which draws from moral and political philosophy as well as social psychology to contend that groups of plaintiffs in large-scale litigation may have (or could be encouraged to develop) organic or indigenous origins such that social norms and moral obligations provide an internally coercive force keeping litigants together and making external judicial coercion less necessary. Specifically, this Article expands the political philosophy behind this idea and continues the conversation that Professor Lahav and I have started here and here. I'm still in the process of revising the third article in the principal trilogy, Litigating Together: Social, Moral, and Legal Obligations (which suggests ways to implement the theoretical framework developed in Litigating Groups), but I hope to have a draft up in the next month or so.
Here's the abstract for Aggregation, Community, and the Line Between:
As class-action theorists, we sometimes focus so heavily on the class certification threshold that we neglect to reassess the line itself. The current line asks whether procedurally aggregated individuals form a sufficiently cohesive group before the decision to sue. Given this symposium’s topic—the state of aggregate litigation and the boundaries of class actions in the decade after Amchem Products, Inc. v. Windsor and Ortiz v. Fibreboard Corp.—the time is ripe to challenge our assumptions about this line in nonclass aggregation. Accordingly, this Article examines group cohesion and asks whether the current line is the only dividing line or even the correct one. If we are willing to look for genuine cohesion among individuals who are procedurally aggregated but lack sufficiently common traits before the decision to sue, then we will find an alternative, but perhaps more compelling, justification for binding collective interests.
This Article draws on the dominant justifications for group litigation—consent and interest representation—to explore this alternative line-drawing scheme in terms of political theory. 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, this Article concludes by explaining the rationale for group autonomy in terms of pluralism and communitarianism.
I'd be very interested to hear comments that readers might have, either by e-mail or in the comments section on this blog.
Wednesday, November 18, 2009
In my previous post pointing readers to Tim Lytton's thought provoking post on TortsProfBlog, I neglected to mention our own Byron Stier's work on the same issue. Interested readers might look to his piece, Jackpot Justice available on SSRN. Here is the abstract:
Mass tort scholars, practitioners, and judges struggle with determining the most efficient approach to adjudicate sometimes tens of thousands of cases. Favoring class actions, mass tort scholars and judges have assumed that litigating any issue once is best. But while litigating any one issue could conceivably save attorneys' fees and court resources, a single adjudication of thousands of mass tort claims is unlikely to further tort goals of corrective justice, efficiency, or compensation in a reliable way. That is because, as recent empirical research on jury behavior shows, any one jury's verdict may be an outlier on a potential bell curve of responses applying the law to the facts before it. Indeed, one aberrational, high jury claim valuation, if extrapolated to thousands of claims through a class action, may inappropriately bankrupt an entire industry. Similarly, one unusually low jury verdict might deny legions of plaintiffs the compensation that they deserve. To illustrate the problems of attempting to resolve a mass tort with a single jury, this Article discusses the Engle tobacco class action of Florida smokers, where the application of a single jury verdict to approximately 700,000 smokers appears to be an outlier verdict in light of prior juries' verdicts in Florida tobacco cases. In contrast, this Article argues that the use of multiple juries in individual cases is a superior method of resolving a mass tort. While the use of multiple juries in class actions to create statistically cobbled claim values has been rejected as violating due process and state tort law, no such problems accompany the approach espoused here: that individual-plaintiff lawsuits, each with its own jury, be tried and that the jury verdicts be used by mass tort litigants to develop claim values for broad mass tort settlement. In addition to remaining within the strictures of constitutional and tort law, this clustering of multiple juries around an accurate valuation of mass tort claims and the resulting likely settlement furthers both the procedural goal of litigant autonomy and the tort aims of efficiency, corrective justice, and compensation.
One question I ask in my work in progress is what makes a process that uses other people's jury verdicts as a predictor of your own award fair? Is this an evolving view of what fairness is in litigation?
Tuesday, October 13, 2009
Plaintiffs' lawyers in the FEMA litigation arising out of the exposure of hurricane Katrina victims to fumes while they were living in government issued trailers have asked the court to conduct two "mock" non-binding summary jury trials. The first plaintiff's case to be tried ended in a defense verdict.
The idea is that these non binding trials would be summary proceedings - taking less than a day and costing a lot less than formal trials. The rules for the trials would be more relaxed as well. Juries would be told that their verdicts are advisory.
The AP article -- found here -- quotes plaintiffs' lawyer Gerald Meunier: "It’s a perfect fit,” said Meunier. “The cost of conducting bellwether trials is substantial for both sides.” The defendants are against the idea.
(Hat tip: Richard Arsenault).
As many of our readers know, I've written on bellwether trials (see my piece on SSRN). In that piece, I argued in favor of binding bellwether trials. I am currently working on an article about the uses of non-binding bellwether trials. In particular, is there a justification for conducting bellwether trials other than efficiency? As the quote from Meunier makes clear, if you think you are going to be settling cases on an aggregate basis then it makes sense from an efficiency perspective to conduct some kind of bellwether trial - either a full blown affaire or the more limited type of advisory trial that the plaintiffs are are proposing. But what about all the plaintiffs whose cases are not getting tried? How can we be certain that we are measuring the value of suits accurately? What about fidelity to the substantive law requiring individualized causation?
The truth is that there is no such thing as an "accurate" measure of a good for which there is no market such as the kinds of damages usually awarded in tort suits. We rely either on jury verdicts, which studies show have substantial variance, or on comparisons with other cases conducted by lawyers using essentially qualitiative analysis. But these are often based on a conveneince sample, that is, the sample of cases that is being analysed is not random and has a potential to be biased. Bellwether trials offer a way to value cases -- assuming the sample is chosen using social science methods -- and limit the biases inherent in the more anecdotal method of comparison. Then we can determine whether the variances in the distribution of the outcomes is such that we can draw conclusions from the bellwether trials or not.
More on this in a bit. ADL