Law Commons^™

Plaintiffs' Process: Civil Procedure, Mdl, And A Day In Court, Elizabeth Chamblee Burch, Abbe R. Gluck

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The article focuses on the concept of "plaintiffs process" within the field of civil procedure. It discusses how civil procedure doctrine has traditionally been defendant-centric, focusing on the rights and protections of defendants in legal cases. It examines the role of multidistrict litigation (MDL) in this context and how it impacts plaintiffs rights and access to the courts.

Perceptions Of Justice In Multidistrict Litigation: Voices From The Crowd, Elizabeth Chamblee Burch, Margaret S. Williams

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With all eyes on criminal justice reform, multidistrict litigation (MDL) has quietly reshaped civil justice, undermining fundamental tenets of due process, procedural justice, attorney ethics, and tort law along the way. In 2020, the MDL caseload tripled that of the federal criminal caseload, one out of every two cases filed in federal civil court was an MDL case, and 97% of those were products liability like opioids, talc, and Roundup.

Ordinarily, civil procedure puts tort plaintiffs in the driver’s seat, allowing them to choose who and where to sue, and what claims to bring. Procedural justice tells courts to ensure …

Some Objections To Strict Liability For Constitutional Torts, Michael Wells

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Qualified immunity protects officials from damages for constitutional violations unless they have violated "clearly established" rights. Local governments enjoy no immunity, but they may not be sued on a vicarious liability theory for constitutional violations committed by their employees. Critics of the current regime would overturn these rules in order to vindicate constitutional rights and deter violations.

This Article argues that across-the-board abolition of these limits on liability would be unwise as the costs would outweigh the benefits. In some contexts, however, exceptions may be justified. Much of the recent controversy surrounding qualified immunity involves suits in which police officers …

Information For The Common Good In Mass Torts, Elizabeth Chamblee Burch, Alexandra D. Lahav

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In recent years, judges have privileged confidentiality over transparency in discovery, especially in large scale multidistrict litigation such as the Opiate litigation. By uncovering the assumptions underlying our current regime, this Article sheds light on the process that got us here as a first step towards re-envisioning the rules governing information in litigation. We investigate an untold history of discovery’s publicity to show that many of our assumptions about what is public and what is private is historically contingent, even accidental. So too are our assumptions about the best way to arrive at truth.

Accordingly, we suggest that courts ought …

Judicial Adjuncts In Multidistrict Litigation, Elizabeth Chamblee Burch, Margaret S. Williams

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Peeking under the tent of our nation's largest and often most impactful cases reveals that judges often act like ringmasters: They delegate their authority to a wide array of magistrate judges, special masters, and settlement administrators. Some, like the American Bar Association, see this as a plus that promotes efficiency and cost savings. Critics, however, contend that delegating judicial power especially to private citizens, removes adjudication from public scrutiny, injects thorny ethical questions about ex parte communications, and risks cronyism and high costs. By constructing an original dataset of ninety-two multidistrict products liability proceedings centralized over fourteen years, we introduce …

Healthism In Tort Law, Elizabeth Weeks

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This article draws on the author's recently published book, Healthism: Health Status Discrimination and the Law (with Jessica L. Roberts) (Cambridge University Press 2018), examining tort law doctrine and policy for examples of differential treatment of health status or behaviors. Just as scholars previously have drawn attention to discrimination based on race, sex, age, and other protected categories in tort law, the article urges similar examination of tort law's potential to discriminate against the unhealthy. The article discusses the potential for healthism in the reasonably prudent person standard of care, contributory negligence, assumption of the risk, noneconomic damages caps, impaired …

Nudges And Norms In Multidistrict Litigation: A Response To Engstrom, Elizabeth Chamblee Burch

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On paper, the Federal Rules of Civil Procedure apply equally to billion-dollar opioid allegations and small-stakes claims for $75,000.01. In practice, however, judges and attorneys in high-stakes multidistrict proceedings like those over opioids have invented a smattering of procedures that you’ll never find indexed in the Federal Rules: plaintiff fact sheets, short form complaints, science days, bellwether trials, census orders, inactive dockets, and Lone Pine orders to name but a few. In a world where settlement is the prevailing currency, norms take root. But as norms blossom, the stabilizing features of the federal rules—balance, predictability, and structural protections—can wither. As …

Abolishing The Suicide Rule, Alex B. Long

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Suicide is increasingly recognized as a public health issue. There are over 40,000 suicides a year in the U.S., making suicide the tenth-leading cause of death in the country. But societal attitudes on the subject remain decidedly mixed. Suicide is often closely linked to mental illness, a condition that continues to involve stigma and often triggers irrational fears and misunderstanding. For many, suicide remains an immoral act that flies in the face of strongly held religious principles. In some ways, tort law’s treatment of suicide mirrors the conflicting societal views regarding suicide. Tort law has long been reluctant to permit …

Qualified Immunity After Ziglar V. Abbasi: The Case For A Categorical Approach, Michael Wells

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Qualified immunity protects officers from liability for damages unless they have violated clearly established rights, on the ground that it would be unfair and counterproductive to impose liability without notice of wrongdoing. In recent years, however, the Supreme Court has increasingly applied the doctrine to cases in which it serves little or no legitimate purpose. In Ziglar v. Abbasi, for example, the rights were clearly established but the Court held that the officers were immune due to lack of clarity on other issues in the case. Because holdings like Ziglar undermine the vindication of constitutional rights and the deterrence of …

Wrongful Convictions, Constitutional Remedies, And Nelson V. Colorado, Michael Wells

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This article examines the U.S. Supreme Court’s Nelson v. Colorado opinion, in which the Court addressed the novel issue of remedies for persons wrongly convicted of crimes. Governments routinely deprive criminal defendants of both liberty and property upon conviction, and do so before giving them a chance to appeal their convictions and sentences. When a conviction is overturned, the state typically refunds fines and most other monetary exactions but seldom compensates for the loss of liberty. In Nelson, the Supreme Court addressed an unusual case in which the state did not return the money and that refusal was approved (purportedly …

Taxing Litigation: Federal Tax Concerns Of Personal Injury Plaintiffs And Their Lawyers, Gregg Polsky

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This Article addresses the federal tax concerns ofpersonal injury plaintiffs and the lawyers who represent them, typically on a contingencyfee basis. It explains when plaintiffs' recoveries are taxable for income and employment tax purposes and whether and how those recoveries are required to be reported by defendants to the IRS. It also discusses whether attorney's fees and costs are deductible by plaintiffs.

In addition to these tax planning and compliance issues, the Article also considers when tax evidence might be admissible. Plaintiffs and defendants often try to introduce tax evidence in an effort to increase or decrease, respectively, the amount …

The Forgotten Role Of Consent In Defamation And Employment Reference Cases, Alex B. Long

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As has been well documented, the fear of defamation suits and related claims leads many employers to refuse to provide meaningful employment references. However, an employer who provides a negative reference concerning an employee enjoys a privilege in an ensuing defamation action if the employee has consented to the release of information concerning the employee’s job performance. Thus, many attorneys now advise prospective employers to have applicants sign consent agreements, permitting the prospective employer to conduct an investigation into the applicant’s work history and releasing from liability anyone who provides information about the employee’s work history. The Restatement (Second) of …

Attorney Deceit Statutes: Promoting Professionalism Through Criminal Prosecutions And Treble Damages, Alex B. Long

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Unbeknownst to many lawyers, numerous jurisdictions - including New York and California - have statutes on the books that single out lawyers who engage in deceit or collusion. In nearly all of these jurisdictions, a lawyer found to have engaged in deceit or collusion faces criminal penalties and/or civil liability in the form of treble damages. Until recently, these attorney deceit statutes have languished in obscurity and, through a series of restrictive readings of the statutory language, have been rendered somewhat irrelevant. However, in 2009, the New York Court of Appeals breathed new life into New York’s attorney deceit statute …

Taxing Punitive Damages, Gregg D. Polsky, Dan Markel

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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 …

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

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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. …

Retaliatory Discharge And The Ethical Rules Governing Attorneys, Alex B. Long

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In Garcetti v. Ceballos, the Supreme Court held that a deputy district attorney who, as part of his job duties, raised concerns with his superiors about possibly unlawful activity and was allegedly fired in response had no First Amendment retaliation claim. In support of its conclusion, the Court suggested that adequate checks already existed at the state and federal level to curb the behavior of employers who engage in unlawful activity and to protect the employees who seek to prevent or expose such activity. In addition to state and federal whistleblower statutes, the Court singled out the rules of professional …

Judging Plaintiffs, Jason M. Solomon

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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 …

Beyond Compensation: Using Torts To Promote Public Health, Elizabeth Weeks Leonard

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Personal injury litigation, or tort law, traditionally, has been viewed as antithetical to the goals of public health. The focus on individual compensation for injuries resulting from accidents, products, and international wrongdoing arguably does not serve the "greater good" or communitarian objectives of public health. This Article, originally presented on a January 2006 AALS Panel on Teaching Public Health In Law School, takes issue with the traditional view and will demonstrate ways that personal injury litigation and public health objectives may be complimentary and mutually reinforcing. Some areas of tort law, such as mass torts against tobacco companies, toxic polluters, …

"It's Not About The Money!": A Theory On Misconceptions Of Plaintiffs' Litigation Aims, Tamara Relis

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This Article examines from a new angle a long-standing debate on a central question of the legal system: why plaintiffs sue and what they seek from litigation. Legal research has documented various extra-legal aims or non-economic agendas of plaintiffs who commence legal proceedings for various case-types. However, current debates have failed to address this issue in depth from the perspectives of plaintiffs themselves, subsequent to lawyers conditioning them on legal system realities and translating their disputes into legally cognizable compartments. Nor have understandings of plaintiffs' aims been examined from the perspectives of defense lawyers. These are significant gaps in the …

Mixing Oil And Water: Reconciling The Substantial Factor And Results-With-In-The-Risk Approaches To Proximate Cause, Peter Zablotsky

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No abstract provided.

From Undermining Child Protection Statutes To Creating Exceptions To Prohibitions Against Racial Discrimination In Public Accommodations: The Unsettling Consequences Of Mischaracterizing The Police Reporting Privilege, Peter Zablotsky

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No abstract provided.

The Business Of Law And Tortious Interference, Alex B. Long

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One frustrating feature of the interference torts is the difficulty in defining precisely when an intentional interference becomes "tortious." While there has been no shortage of proposals to better define the interference torts, there is widespread uncertainty and dissatisfaction concerning the current state of the law. Attorneys have not been spared from the confusion. However, it is on the business side of the practice of the law, rather than the practice side, that attorneys are more likely to actually be held liable for tortious interference. In general, a tortious interference claim is a viable option for an attorney who feels …

Revisiting The Taxation Of Punitive Damages, Gregg D. Polsky, Dan Markel

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In our recent article, Taxing Punitive Damages, available at http://ssrn.com/abstract=1421879, we argued (1) that plaintiffs in punitive damages cases should be allowed to introduce to the jury evidence regarding the deductibility of those damages by defendants, and (2) that this jury tax-awareness approach is better than the Obama Administration’s suggested alternative of disallowing those deductions.

To our delight, Professor Larry Zelenak and Paul Mogin have each provided published comments to our piece on Virginia Law Review's In Brief companion website. Professor Zelenak’s thoughtful response focuses on our prescriptive claim that jury tax-awareness is better than nondeductibility, while Mr. Mogin disputes …

Suing States For Money: Constitutional Remedies After Alden And Florida Prepaid, Michael Wells

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On June 23, 1999, the Supreme Court handed down three noteworthy decisions bearing on the law of constitutional remedies. Alden v. Maine struck down an attempt by Congress, acting under its Article I powers, to subject states to suits in state court on federal statutory grounds. Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank curbed Congress' power under Section 5 of the Fourteenth Amendment to authorize suits against state governments on constitutional grounds, reasoning that a case cannot be made for the federal cause of action unless state law remedies are inadequate. A companion case, College Savings Bank …

Intervention In Public Law Litigation: The Environmental Paradigm, Peter A. Appel

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Litigation which Chayes labeled “public law litigation” grew especially quickly in the decade immediately before Chayes wrote his article. This growth was due, in no small part, to the 1966 amendments to the Federal Rules of Civil Procedure. These amendments introduced a more transactional approach to litigation and made the rules concerning party structure more flexible. In particular, the amendments modified Rule 19, which governs joinder of nonparties by the parties to the suit; Rule 23, which governs class action lawsuits; and Rule 24, which governs intervention by nonparties into ongoing litigation. Using the jurisprudence that has developed concerning intervention …

Why Constitutional Torts Deserve A Book Of Their Own, Michael Wells, Thomas A. Eaton, Sheldon H. Nahmod

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Over thirty years ago, Marshall Shapo coined the term "constitutional tort" to denote a suit brought against an official, charging a constitutional violation and seeking damages. In the years since Shapo's pathbreaking article, the number of such suits has grown exponentially. The suits have generated a host of new substantive and remedial issues, yet conventional casebooks on constitutional law and federal courts give little attention to the area. That Professor Shapiro had four books to include in his review of "Civil Rights" casebooks in the Seattle University Law Review is some indication of a demand for teaching materials currently unmet …

Limits On Preemption And Punitive Damages: Can They Be Related?, Peter Zablotsky

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No abstract provided.

The Jurisprudence Of Action And Inaction In The Law Of Tort: Solving The Puzzle Of Nonfeasance And Misfeasance From The Fifteenth Through The Twentieth Centuries, Theodore Silver, Jean Elting Rowe

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No abstract provided.

Eliminating Proximate Cause As An Element Of The Prima Facie Case From Strict Products Liability, Peter Zablotsky

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No abstract provided.

Uncommon Law And The Bill Of Rights: The Woes Of Constitutionalizing State Common-Law Torts, Elaine W. Shoben

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During the two-hundred-year history of the Bill of Rights, the Supreme Court occasionally has used those first ten Amendments to constitutionalize state common-law torts. In this essay, Professor Elaine Shoben argues that the Court would be well advised to forgo that practice. Pointing to the Court's experience in constitutionalizing defamation law under the First Amendment, Professor Shoben says when the Court meddles in state tort law, the result is a highly complex and very unsatisfactory body of law. On the Bicentennial of the Bill of Rights, this author recommends that if the Court feels compelled to reform a state common-law …