Monday, September 21, 2009

Recent Scholarship Roundup

Here's more news from the academy that you might find to be useful:

First, Professors Kevin Clermont (Cornell) and Stephen Yeazell (UCLA) level both barrels at two of our favorite cases, Bell Atlantic v. Twombly and Iqbal v. Ashcroft. The "point of th[eir] Article is that wherever you stand on pleading -- even if you think the federal litigation system is wildly out of control with many frivolous suits, or instead if you think the role of pleading should be further purified to eliminate all of its screening function -- you should find these recent decisions lamentable." Here's a link to the SSRN page, which in turn links to the article, "Inventing Tests, Destabilizing Systems." At times like this, we wish we could pry ourselves free from client work to go into the business of writing rebuttals.

On the other hand, we're happy to stick to client work when we read gems such as A. Mitch Polinsky (Stanford) and Steven Shavell's (Harvard) "The Uneasy Case for Product Liability" (SSRN link here). These sagacious fellows conclude that, if their analysis is accepted, then product liability "should be substantially curtailed or even abolished, at least for widely sold products." Not, bad, huh? And that puppy is forthcoming in the Harvard Law Review. Here's the entire abstract:

"We explain in this Article that the benefits of product liability may well be outweighed by its costs in a wide range of circumstances. One benefit is that the threat of liability may induce firms to improve product safety. However, this benefit is limited: even in the absence of product liability, firms would often be motivated by market forces to enhance product safety because their sales are likely to fall if their products harm consumers; moreover, their products must frequently conform to safety regulations. Consequently, product liability might not be expected to exert a significant additional influence on product safety — and the available empirical evidence suggests that such liability does not in fact have a measurable effect on the frequency of product accidents. A second benefit of product liability is that it causes product prices to increase to reflect the riskiness of products and thereby may improve consumer purchase decisions. But this benefit also involves a detriment, because product prices may rise excessively and undesirably chill purchases. A third benefit of product liability is that it compensates victims of product-related accidents for their losses. Yet this benefit is only partial, for accident victims are already often compensated by their insurers for some or all of their losses. Potentially offsetting the benefits of product liability are its costs, which are great. To transfer a dollar to a victim of a product accident requires more than a dollar on average in legal expenses. Given the limited benefits and the high costs of product liability, we conclude that it may be socially undesirable — especially for widely sold products, with respect to which market forces and regulation are relatively strong. This judgment is in tension both with the broad social endorsement of product liability and with proposals for its reform, which generally do not question its existence. Our more critical assessment of product liability stems from the fact that we engage in an analysis of its benefits and costs, whereas neither the proponents of product liability nor its reformers undertake to do so."

Finally, there's "Jackpot Justice: Verdict Variability and the Mass Tort Class Action" (SSRN link here) by Byron Stier (Southwestern). The issue of the Temple Law Review containing the article is dated 2007, But Stier reports that the article was just published this year. That article criticizes certifying a class and thus having one jury adjudicate the result of many mass tort cases. Instead, Stier advocates "the use of multiple juries in individual cases [as] a superior method of resolving a mass tort." Here's the entire 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."

We hope you find our occasional trips into the scholarly literature to be useful.

(We figure most of you are breathing a sigh of relief: "Better them than me!")

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