Linda Mullenix, ‘Competing Values: Preserving Litigant Autonomy in an Age of Collective Redress’

In one of the most famous law review articles ever written, The Role of the Judge in Public Law Litigation, Professor Abram Chayes in 1976 described a paradigm shift away from bipolar traditional litigation to a new model of public law litigation. Embedded in the traditional model was a deeply-held notion of litigant autonomy – that is, a fundamental right of any person to appear in his individual capacity to advocate for remediation of alleged wrongdoing. The concept of litigant autonomy reflected certain process and dignity ideals, including the psychological and cathartic values in individual representation.

In his analysis of a changed litigation landscape, Professor Chayes concluded: “… from the perspective of the traditional model, the [new public law] proceeding is recognizable as a lawsuit only because it takes place in a courtroom before an official called a judge.” Judge Jack Weinstein’s judicial philosophy and class action jurisprudence were forged during this period, and he readily characterized mass tort cases as a new form of public law litigation. There is perhaps no judge more identified with the aggregate litigation movement of the late twentieth century and, in turn, Judge Weinstein’s landmark efforts have inspired generations of acolytes who have subscribed to and implemented his views on aggregate claim resolution.

Throughout the 1980s and 1990s judicial experiments addressing the efficient resolution of mass tort litigation were undergirded by a jurisprudential debate pitting collective redress mechanisms against arguments for litigant autonomy. By the end of the twentieth century, the proponents of aggregate claim resolution had prevailed over competing theories of litigant autonomy. However, arguments centered on litigant autonomy have endured and received renewed advocacy in era of twenty-first century of informal aggregation techniques.

This article suggests that Judge Weinstein’s jurisprudential odyssey illuminates the interesting tension between litigant autonomy and collective redress. Ironically, the judge so closely identified with compassionate treatment of individuals became the leading advocate for collective redress. The article discusses how, in the United States, concepts of collective redress and aggregate settlements prevailed over notions of litigant autonomy. In light of this, the article questions whether it is worth revisiting this debate and the values embraced by litigant autonomy, which values largely have been displaced by the triumph of aggregate claim resolution.

The article concludes with reflections on the current European movement for collective redress mechanisms. EU countries have seriously considered the debate between collective redress and litigant autonomy, and have concluded – unlike the United States – that any emerging EU collective redress model must preserve the deeply-held European civil law notion of the fundamental right to litigant autonomy. The EU experience suggests a compromise means for implementing collective redress regimes while preserving this fundamental right.

Mullenix, Linda S, Competing Values: Preserving Litigant Autonomy in an Age of Collective Redress (April 19, 2014). DePaul Law Review, Vol. 64, 2014; U of Texas Law, Public Law Research Paper No. 533.

‘Federalism and Mass Tort Litigation’

J Maria Glover, Mass Litigation Governance in the Post-Class Action Era: The Problems and Promise of Non-Removable State Actions in Multi-District Litigation, Journal of Tort Law (forthcoming 2014). Fair and global resolutions to mass tort claims are not easy to achieve. Aggregation of claims, either through a formal class action or perhaps through multi-district litigation (‘MDL’) consolidation, has been a key feature of mass tort litigation for several decades. In an MDL, related cases filed in federal court may be consolidated before a single judge for coordinated pre-trial proceedings, including settlement. The benefits and limitations of aggregation generally, and the MDL device itself, have been the subject of numerous academic papers. American federalism places a stumbling block in the way of complete aggregation – the presence of related but non-removable claims pending in state court, which cannot be part of that consolidated federal action …” (more)

[Robin Effron, JOTWELL, 22 April]

Making the Fine Print Fair Symposium’

For those of you unable to attend the ‘Making the Fine Print Fair’ Symposium, hosted by the Georgetown Consumer Law Society and Citizen Works – Fair, here is a link to a Livestream of the program. It was an absolutely terrific event with a great mix of academics, consumer advocates, regulators and practitioners. The amazing line-up of speakers … (more, link)

[Nancy Kim, ContractsProf Blog, 18 April]

Rashmi Dyal-Chand, ‘Pragmatism and Postcolonialism: Protecting Non-Owners in Property Law’

Property law has a particular problem with non-owners. Although property law has a very clear understanding of the rights of “owners,” it has only a vague understanding of the rights of “non-owners.” The problem is significant, because modern property law is so often called upon to balance the rights and needs of owners and non-owners. With so vague an understanding of one set of rights, property law cannot adequately perform this function. The New Jersey case of State v. Shack exemplifies this problem, because it purports to be a case about protecting non-owners. By examining both the case and the texts upon which the Court relied in deciding the case, this Article argues that the New Jersey Supreme Court could not understand, and therefore could not adequately protect, the non-owners in the case. Instead, in its effort to evince a set of rights powerful enough to overcome the property owner’s rights, the Court eliminated the voices of the migrant workers it claimed to protect.

This Article draws upon postcolonialist theory both in examining the problem and in prescribing a solution. In its prescription, the Article proposes a pragmatic form of postcolonialist inquiry as a theoretical foundation for protecting non-owners in property law. Relying on the less iconic case of Hilder v. St. Peter, the Article proposes three devices within the common law tradition that are well suited to the task of representing and protecting non-owners. As Hilder demonstrates, by the pragmatic use of storytelling, the personalization of claims, and the precise matching of remedies to harm and need, legal decision-makers can more fully consider and protect the rights and needs of non-owners.

Dyal-Chand, Rashmi, Pragmatism and Postcolonialism: Protecting Non-Owners in Property Law (April 16, 2014). American University Law Review, Vol 63, forthcoming; Northeastern University School of Law Research Paper No. 182-2014.

Maria Glover, ‘Mass Litigation Governance in the Post-Class Action Era’

Given a string of decisions restricting the use and availability of the class action device, the world of mass litigation may well be moving into a post-class action era. In this era, newer devices of aggregation — perhaps principally among them multi-district litigation (“MDL”) — increasingly will be called upon to meet the age-old mass litigation goal of achieving global peace of numerous claims arising out of a related, widespread harm. Indeed, coordination of pretrial proceedings in the MDL frequently facilitates the achievement of this peace, given the reality that cases, once consolidated in the MDL, often settle en masse.

However, one clear obstacle to the achievement of aggregate peace in the MDL, one that also plagues the achievement of that peace in the class action world, is our federal system of substantive and procedural law. In the MDL context, the problem arises because litigation involving state-law claims and non-diverse parties, which are not removable from state court, cannot be transferred to the MDL court. Despite their prevalence, little scholarly attention has been devoted to non-removable state-court actions in MDL. The few responses to this issue have largely focused upon the efficiencies that could be gained through increased, and perhaps total, consolidation of all related cases or, short of consolidation, through heightened coordination of pre-trial proceedings between state and federal judges.

This article questions whether these responses have led reform proposals in the wrong direction, and instead takes a different view. Rather than argue for increased consolidation, I offer for further consideration the possible ways in which the happenstantial existence of parallel tracks of related state and federal cases actually hold promise, if properly harnessed, as mechanisms for achieving the goals of aggregate litigation and for disciplining the contours of global settlements of mass disputes. In particular, I explore the possibility that the existence of parallel state and federal cases — frequently viewed as an obstacle to global resolution of claims unable to be consolidated in a single forum — may well fortuitously provide an opportunity to achieve the sorts of mass litigation resolution envisioned but unsuccessfully attempted in the class action context. In so doing, this article adds new thoughts and theories to the specific debate regarding parallel state and federal claims in MDL, as well as to the larger debate about mass litigation governance in a post-class action world.

Glover, Maria, Mass Litigation Governance in the Post-Class Action Era: The Problems and Promise of Non-Removable State Actions in Multi-District Litigation (2014). Journal of Tort Law, forthcoming.

Currie and MacLeod, ‘Savage Tables and Tort Law: An Alternative to the Precaution Model’

The model of precaution has become a central tool of law and economics, beginning with Judge Learned Hand’s brilliant opinion in United States v Carroll Towing Co. In it he argues that a defendant should be found liable for harm if and only if the expected cost of additional care is less than the expected benefit. The model of precaution relies upon the economics of incentives, a subfield of game theory — the study of how individuals choose actions when these actions affect others. The landmark books of Professor William Landes and Judge Richard Posner, and Professor Steven Shavell illustrate how the precaution model illuminates a wide variety of legal rules. Professor Guido Calabresi and A Douglas Melamed show how it can be used to integrate tort and property. Professor Robert Cooter uses the model to provide a unified analysis of tort and contract. A central result of the model is that the standard for negligence provides incentives for individuals to take socially optimal actions …

Janet M Currie and W Bentley MacLeod, ‘Savage Tables and Tort Law: An Alternative to the Precaution Model’. University of Chicago Law Review, Vol 81, 53 (2014).

DeVito and Jurs, ‘“Doubling-Down” for Defendants: The Pernicious Effects of Tort Reform’

Tort reform legislation developed as a response to a series of insurance crises and reactions that blamed the personal injury compensation system for those problems. Since measures of tort reform have been adopted, many researchers have analyzed their effects within and beyond the legal system, assessing how they affect damages, insurance claims, health costs, and physician supply. Our study analyzes an underdeveloped area of research: the effect of tort reform on the filing of cases in court. Using two databases of state court filing data over 12 years, we examine how a damages cap for medical negligence claims affects case filings in the years immediately after its adoption. With several test states, we find that when a state adopts med mal damages caps, there is a statistically significant drop of 23% in med mal filings. We confirm this effect by also measuring the effect of a cap’s nullification, and find that in the aftermath of a cap’s removal case filings increase by 29%. Our work can therefore confirm and quantify the effect of damages caps on case filing …

Scott DeVito and Andrew W Jurs, “Doubling-Down” for Defendants: The Pernicious Effects of Tort Reform, 118 Penn State Law Review 543 (2014).

Christopher Tyson, ‘Municipal Identity as Property’

Detroit is bankrupt, and very little of the theorizing and editorializing about this watershed event has contemplated municipal boundary law as a contributing factor. To the extent that it has, the analysis fails to grasp how essential municipal boundaries are to the creation of economic and social value in the modern metropolis. It has been almost 20 years since Richard Briffault, Gerald Frug, and Richard Ford released their path-breaking scholarship on the municipal boundary problem, yet metropolitan regions continue to fragment in much the same way Detroit did throughout the twentieth century. The persistent fragmentation evident in many metropolitan areas raises familiar questions about the meaning and function of municipal boundaries and how local government law should respond. At the center of the contemporary metropolitan boundary problem are the localist ambitions of the cityhood and annexation movements …

Christopher J Tyson, Municipal Identity as Property, 118 Penn State Law Review 647 (2014).

Ken Burleson, ‘Learning from Copyright’s Failure to Build Its Future’

Since file sharing emerged in the late 1990s, copyright infringement has been widespread and virtually impervious to legal sanctions. Despite the best efforts of industry representatives and the lawmakers acting at their behest, attempts to scare and shame copyright infringers into compliance with the law have fallen flat. Part I of this Note discusses the ongoing conflict between modern copyright law and socially acceptable behavior, specifically copyright infringement through digital means. Part II explores the various attempts, and subsequent failures, to curb infringement through deterrence measures. Part III explains why deterrence has been ineffective by exploring psychological models of law-abiding behavior and their implications for copyright, given what we know of infringing behavior. Part IV explores the education and publicity campaigns that have been implemented in an attempt to change the public’s perception of copyright infringement. Part IV also explains under a psychological approach why these campaigns have been unsuccessful. Part V draws on a cognitive approach to jurisprudence to advocate for a new form of copyright to supplement and work around the failing current paradigm …

Ken Burleson, ‘Learning from Copyright’s Failure to Build Its Future’. Indiana Law Journal, Vol 89, 1299-1325 (2014).

Inaugural: Tsachi Keren-Paz, ‘Private law: A social tool that reflects different forms of justice’, Keele University, 12 May 2014

The theory of private law – the area governing interactions between individuals, such as contracts and torts – is still partially dominated by a ‘corrective justice’ approach focusing merely on the past interaction between the litigants and denying the relevance of broader considerations and effects on society. In this talk, I defend an alternative view according to which private law (and law generally) is one social tool to achieve different forms of justice. While not denying the importance of corrective justice to private law, such an account stresses the importance of distributive justice, and in particular of equality and fairness, and the ways in which distributive justice informs the scope of obligations recognised by corrective justice. This approach will be demonstrated by focusing on several examples … (more)

[Keele University, April 2014]