Law Commons^™

Constructing Issue Classes, Elizabeth Chamblee Burch

Scholarly Works

As government budgets shrink each year, enforcement responsibilities in products liability, consumer protection, and employment discrimination fall increasingly to private attorneys. But defendants have successfully layered new objections about noncohesive classes and unascertainable members atop legislative and judicial reforms to cripple plaintiffs’ attorneys’ chief weapon — the class action. The result? Courts deny class certification and defendants escape enforcement by highlighting the differences among those affected by their misconduct. At the other end of the regulatory spectrum lies the opposite problem. Some defendants’ actions are so egregious that hordes of public and private regulators can’t help but get involved — …

Judging Multidistrict Litigation, Elizabeth Chamblee Burch

Presentations and Speeches

Professor Elizabeth Chamblee Burch presented "Judging Multidistrict Litigation" at Duke University School of Law's Mass-Tort MDL Program for Judicial Conference Committees on October 8, 2015.

Judging Multidistrict Litigation, Elizabeth Chamblee Burch

Scholarly Works

High-stakes multidistrict litigations saddle the transferee judges who manage them with an odd juxtaposition of power and impotence. On one hand, judges appoint and compensate lead lawyers (who effectively replace parties’ chosen counsel) and promote settlement with scant appellate scrutiny or legislative oversight. But on the other, without the arsenal class certification once afforded, judges are relatively powerless to police the private settlements they encourage. Of course, this power shortage is of little concern since parties consent to settle.

Or do they? Contrary to conventional wisdom, this Article introduces new empirical data revealing that judges appoint an overwhelming number of …

Reforming The Consumer Class Action, Elizabeth Chamblee Burch

Presentations and Speeches

Professor Elizabeth Chamblee Burch was part of a panel on Reforming the Consumer Class Action. This was part of a conference entitled: The Future of Class Action Litigation: A View From the Consumer Class that took place at the New York University School of Law on November 7, 2014

Constitutional Remedies: Reconciling Official Immunity With The Vindication Of Rights, Michael Wells

Scholarly Works

A great deal of scholarly attention is devoted to constitutional rights and comparatively little to remedies for their violation. Yet rights without remedies are not worth much, and remedial law does not always facilitate the enforcement of rights, even of constitutional rights. This Article discusses an especially challenging remedial context: suits seeking damages for constitutional wrongs that occurred in the past, that are unlikely to recur, and hence that cannot be remedied by forward-looking injunctive or declaratory relief. Typical fact patterns include charges that the police, prison guards, school administrators, or other officials have engaged in illegal searches and seizures, …

Inexcusable Wrongs, John C.P. Goldberg

Sibley Lecture Series

John Goldberg, Goldston Professor of Law at Harvard University, presented “Inexcusable Wrongs” as the University of Georgia School of Law’s 111th Sibley Lecturer on April 11 at 3:30 p.m. in the Hatton Lovejoy Courtroom of Hirsch Hall.

An expert in tort law, tort theory and political philosophy, Goldberg discussed how tort law has little patience for excuses while criminal law is more forgiving. He offered a unified account of many of tort law’s core features as well as a broadened understanding of what it means for law to identify conduct as wrongful and for law to set up schemes for …

Remanding Multidistrict Litigation, Elizabeth Chamblee Burch

Scholarly Works

Multidistrict litigation has frequently been described as a “black hole” because transfer is typically a one-way ticket. The numbers lend truth to this proposition. As of 2010, the Judicial Panel on Multidistrict Litigation remanded only 3.425% of cases to their original districts. That number dwindled to 3.1% in 2012, and to a scant 2.9% in 2013. Retaining cases in hopes of forcing a global settlement can cause a constellation of complications. These concerns range from procedural justice issues over selecting a forum and correcting error, to substantive concerns about fidelity to state laws, to undermining democratic participation ideals fulfilled through …

Facilitative Judging: Organizational Design In Mass-Multidistrict Litigation, Jaime Dodge

Scholarly Works

Faced with the emerging phenomenon of complex litigation—from school desegregation to mass torts—the judiciary of the last century departed from the traditional, purely adjudicative role in favor of managerial judging, in which they actively supervised cases and even became involved in settlement talks. I argue that a similar transition in judicial role is now occurring. I contend that transferee judges are now stepping back from active participation in settlement discussions but playing a far greater role in structuring and administering the litigation. This new judicial role focuses on facilitating the parties’ resolution of the case, whether through settlement or remand …

Disaggregative Mechanisms: The New Frontier Of Mass-Claims Resolution Without Class Actions, Jaime Dodge

Scholarly Works

Aggregation has long been viewed as the primary if not sole vehicle for mass claims resolution. For a half-century, scholars have consistently viewed the consolidated litigation of similar claims through joinder, class actions and more recently multi-district litigation as the only mechanism for efficiently resolving mass claims. In this Article, I challenge that long-standing and fundamental conception. The Article seeks to reconceptualize our understanding of mass claims resolution, arguing that we are witnessing the birth of a second, unexplored branch of mass claims resolution mechanisms — which I term “disaggregative” dispute resolution systems because they lack the traditional aggregation of …

Adequately Representing Groups, Elizabeth Chamblee Burch

Scholarly Works

Adequate representation and preclusion depend on whether the courts treat a litigant as part of a group experiencing an aggregate harm or as a distinct person suffering individual injuries. And though a vast literature about adequate representation exists in the class-action context, it thins dramatically when contemplating other forms of group litigation, such as parens patriae actions and multidistrict litigation. As class actions have gradually fallen into disfavor and attorneys and commentators seek alternative means for resolving group harms, the relative clarity of Rule 23 wanes. How should courts evaluate adequate representation in parens patriae actions and in multidistrict litigation? …

Disaggregating, Elizabeth Chamblee Burch

Scholarly Works

Commonality is a defining characteristic of mass-tort litigation. But mass-tort claimants typically do not share enough in common to warrant class certification. That is, commonality does not predominate. Yet, without class certification, judges cannot conclude these cases as a unit absent a private settlement.

This paradox prompts two questions. First, what level of commonality justifies aggregating mass torts, shorn of Rule 23’s procedural protections? And, second, should the federal judicial system continue to centralize claims with nominal commonality when judges typically cannot resolve them collectively absent a private settlement? This Article’s title suggests one answer: if minimal commonality continues to …

Financiers As Monitors In Aggregate Litigation, Elizabeth Chamblee Burch

Scholarly Works

This Article identifies a market-based solution for monitoring large-scale litigation proceeding outside of Rule 23’s safeguards. Although class actions dominate the scholarly discussion of mass litigation, the ever increasing restrictions on certifying a class mean that plaintiffs’ lawyers routinely rely on aggregate, multidistrict litigation to seek redress for group-wide harms. Despite sharing key features with its class action counterpart—such as attenuated attorney-client relationships, attorneyclient conflicts of interest, and high agency costs—no monitor exists in aggregate litigation. Informal group litigation not only lacks Rule 23’s judicial protections against attorney overreaching and self-dealing, but plaintiff’s themselves cannot adequately supervise their attorneys’ behavior. …

Who Owes How Much? Developments In Apportionment And Joint And Several Liability Under O.C.G.A. § 51-12-33, Thomas A. Eaton

Scholarly Works

Without question, O.C.G.A. 51-12-13 as construed in McReynolds and Couch ushers in a new era in Georgia tort law. It topples the old regime in which multiple tortfeasors were held jointly liable when their combined acts of negligence injured an innocent plaintiff. The new regime is one of apportionment and liability limited to one's personal share of fault. Fault may be apportioned when it previously could not. It may be apportioned to those who are immune, to those who are unknown, and even to those who intentionally injure an innocent plaintiff. The practical consequence of this regime change is to …

Who Owes How Much? Developments In Apportionment And Joint And Several Liability Under O.C.G.A. § 51-12-33, Thomas A. Eaton

Scholarly Works

For most of its history, Georgia followed the traditional common law rule of joint and several liability and the equally well-settled principle that negligence could not be compared with intent when apportioning liability. Both of those propositions were dramatically altered by the enactment of the 2005 amendments to the Official Code of Georgia Annotated (O.C.G.A.) section 51-12-33 as construed by the Georgia Supreme Court in two recent opinions.

Civil Recourse, Damages-As-Redress, And Constitutional Torts, Michael Wells

Scholarly Works

In Torts as Wrongs, Professors John Goldberg and Benjamin Zipursky discuss the connection between "tortious wrongdoing" and "civil recourse." Their civil recourse theory "sees tort law as a means for empowering individuals to seek redress against those who have wronged them." Goldberg and Zipursky show that modern tort theory is dominated by "loss allocation," which uses liability and damages as instruments for assigning losses to deter unwanted behavior and to compensate the plaintiff. Under loss allocation, the central principle of damages is full compensation that is, to make the plaintiff whole. The core component of damages, though not the only …

Optimal Lead Plaintiffs, Elizabeth Chamblee Burch

Scholarly Works

Adequate representation in securities class actions is, at best, an afterthought and, at worst, usurped and subsumed by the Private Securities Litigation Reform Act’s lead-plaintiff appointment process. Once appointed, the lead plaintiff bears a crushing burden: Congress expects her to monitor the attorney, thwart strike suits, and deter fraud, while judges expect her appointment as the “most adequate plaintiff” to resolve intra-class conflicts and adequate-representation problems. But even if she could be all things to all people, the lead plaintiff has little authority to do much aside from appointing lead counsel. Plus, class members in securities-fraud cases have diverse preferences …

Group Consensus, Individual Consent, Elizabeth Chamblee Burch

Scholarly Works

Despite a rise in the number of personal-injury and product-liability cases consolidated through multi-district litigation, a decline in class-certification motions, and several newsworthy nonclass settlements such as the $4.85 billion Vioxx settlement and estimated $700 million Zyprexa settlements, little ink has been spilled on nonclass aggregation’s unique issues. Sections 3.17 and 3.18 of the American Law Institute’s Principles of the Law of Aggregate Litigation are a noteworthy exception. This Article uses those principles as a lens for exploring thematic questions about the value of pluralism, group cohesion, governance, procedural justice, and legitimacy in nonclass aggregation.

Sections 3.17 and 3.18 make …

Time And Change In Judge-Made Law: Convergence, Divisions Of Authority, And The Restatement, Michael Wells

Scholarly Works

In his contribution to Wake Forest Law School’s 2009 Symposium on the Restatement (Third) of Torts, Professor Kenneth Abraham starts with two propositions, one descriptive, the other normative. The descriptive claim is that “tort law . . . is mature and largely stable,” and that “[o]ver time, the law of different states will converge.” As he points out, “The formation of the American Law Institute (“ALI”) itself, and the project of restating the law that the ALI . . . undertook” depends on these premises.

The project of restating the law also depends on a normative premise, namely that …

Litigating Together: Social, Moral, And Legal Obligations, Elizabeth Chamblee Burch

Scholarly Works

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 …

Taxing Punitive Damages, Gregg D. Polsky, Dan Markel

Scholarly Works

There is a curious anomaly in the law of punitive damages. Jurors assess punitive damages in the amount that they believe will best “punish” the defendant. But, in fact, defendants are not always punished to the degree that the jury intends. Under the Internal Revenue Code, punitive damages paid by business defendants are tax deductible and, as a result, these defendants often pay (in real dollars) far less than the jury believes they deserve to pay.

To solve this problem of under-punishment, many scholars and policymakers, including President Obama, have proposed making punitive damages nondeductible in all cases. In our …

The Story Of Us: Resolving The Face-Off Between Autobiographical Speech And Information Privacy, Sonja R. West

Scholarly Works

Increasingly more “ordinary” Americans are choosing to share their life experiences with a public audience. In doing so, however, they are revealing more than their own personal stories, they are exposing private information about others as well. The face-off between autobiographical speech and information privacy is coming to a head, and our legal system is not prepared to handle it.

In a prior article, I established that autobiographical speech is a unique and important category of speech that is at risk of being undervalued under current law. This article builds on my earlier work by addressing the emerging conflict between …

Aggregation, Community, And The Line Between, Elizabeth Chamblee Burch

Scholarly Works

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 non-class aggregation. Accordingly, this Article examines group cohesion and asks whether the current line is the only dividing …

The Status Of Tort Reform (S.B. 3) 4 Years Later, Thomas A. Eaton

Presentations and Speeches

Overview of tort reform changes under Georgia S.B. 3 (2005)

Scott V. Harris And The Role Of The Jury In Constitutional Litigation, Michael Wells

Scholarly Works

Suits brought under 42 U.S.C. section 1983 to recover damages for excessive force by the police bear some resemblance to common law tort litigation, since the key Fourth Amendment issue is whether the force was 'unreasonable.' In ordinary negligence law the jury typically decides whether an actor has exercised reasonable care, even when there is no dispute as to the facts. In section 1983 litigation the federal courts are badly split on the allocation of decision making between judge and jury, sometimes even within a particular circuit. The Supreme Court recently faced the judge-jury issue in Scott v. Harris, where …

Litigating Groups, Elizabeth Chamblee Burch

Scholarly Works

Large-scale litigation, such as the Vioxx, Zyprexa, and asbestos cases, breeds conflict. Conflicts arise between attorneys and their clients (agency problems), plaintiffs and other plaintiffs (group problems), and plaintiffs' attorneys and other plaintiffs' attorneys (competition problems). Although these cases cannot be certified as class actions, they still proceed en masse to achieve economies of scale and present a credible threat to defendants. Assuming that coordinating and consolidating large-scale litigation is systemically desirable, this Article explores a new approach to removing the group and agency problems that increase aggregate litigation's costs and undermine its normative goals such as fairness, compensation, and …

Procedural Justice In Nonclass Aggregation, Elizabeth Chamblee Burch

Scholarly Works

Nonclass aggregate litigation is risky for plaintiffs: it falls into the gray area between individual litigation and certified class actions. Although scholars have formulated procedural protections for both extremes, the unique danger and allure posed by nonclass aggregation has been undertheorized, leaving mass tort claimants with inadequate safeguards. When hallmark features of mass torts include attenuated attorney-client relationships, numerous litigants, and the demise of adversarial legalism, the attorney-client relationship itself becomes another bargaining chip in the exchange of rights. This Article thus takes the initial steps toward advancing a cohesive theory of procedural justice in nonclass aggregation by exposing the …

Amicus Brief, Lebron V. Gottlieb Memorial Hospital, Neil Vidmar, Tom Baker, Ralph L. Brill, Martha Chamallas, Stephen Daniels, Thomas A. Eaton, Theodore Eisenberg, Neal R. Feigenson, Lucinda M. Finley, Marc Galanter, Valerie P. Hans, Michael Heise, Edward J. Kionka, Thomas H. Koenig, Herbert M. Kritzer, David I. Levine, Nancy S. Marder, Joanne Martin, Frank M. Mcclellan, Deborah Jones Merritt, Philip G. Peters, Jr., James T. Richardson, Charles Silver, Richard W. Wright

Scholarly Works

Illinois Public Act 82-280, § 2-1706.5, as amended by P.A. 94-677, § 330 (eff. Aug. 25, 2005), and as codified as 735 ILCS 5/2-1706.5(a), imposes a $500,000 “cap” on the noneconomic damages that may be awarded in a medical malpractice suit against a physician or other health care professional, and a $1 million “cap” on the noneconomic damages that may be awarded against a hospital, its affiliates, or their employees.

This brief will address two of the questions presented for review by the parties:

1. Does the cap violate the Illinois Constitution’s prohibition on “special legislation,” Art. IV, § 3, …

Cafa's Impact On Litigation As A Public Good, Elizabeth Chamblee Burch

Scholarly Works

Class actions regulate when government fails. Perhaps this use as an ex post remedy when ex ante regulation founders explains the fervor and rhetoric surrounding Rule 23's political life. In truth, the class action does more than aggregate; it augments government policing and generates external societal benefits. These societal benefits - externalities - are the spillover effects from facilitating small claims litigation. In federalizing class actions through the Class Action Fairness Act (CAFA), Congress, in some ways, impeded class action practice, thereby negating its positive externalities and inhibiting backdoor regulation. This Article critically considers those effects on the common good. …

Judging Plaintiffs, Jason M. Solomon

Scholarly Works

With its powerful account of the normative principles embodied in the structure and practice of the law of torts, corrective justice is considered the leading moral theory of tort law. It has a significant advantage over instrumental and other moral theories in that it is more consistent with what judges say when they analyze tort law concepts. And with criticism of instrumental accounts, like law and economics, on a number of fronts, it is the leading descriptive theory of tort law.

In this Article, I take up a question that has never been answered adequately by corrective-justice or other moral …

The State Of The Judiciary: A Corporate Perspective, Larry D. Thompson, Charles J. Cooper

Scholarly Works

The rule of law depends on highly talented, independent judges who conscientiously strive to ensure that the law is consistently applied in a principled and predictable manner. This Essay addresses two potential threats to judicial independence and the rule of law that we believe warrant special attention at this time. First, inadequate judicial salaries pose a threat to the quality and independence of the judiciary. Judges' real pay has declined substantially over the past generation, even as the compensation of other callings within the legal profession has risen dramatically. This growing disparity in pay has prompted an increasing number of …