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A New Way Forward: A Response To Judge Weinstein, Elizabeth Chamblee Burch
A New Way Forward: A Response To Judge Weinstein, Elizabeth Chamblee Burch
Scholarly Works
This short essay responds to Judge Jack Weinstein's essay, Preliminary Reflections on Administration of Complex Litigations, 2009 Cardozo De Novo 1. In so doing, it also provides a condensed version of my earlier article, Litigating Groups, which analyzes group dynamics within nonclass aggregation. By drawing on the literature of moral and political philosophy as well as social psychology, I contend that, in the face of hard cases, of instability and disunity, plaintiffs who have made promises and assurances to one another can invoke social norms of promise-keeping, social agglomeration, compatibility, and the desire for means-end coherence to achieve consensus, mitigate …
The Complexity Of Modern American Civil Litigation: Curse Or Cure?, Stephen B. Burbank
The Complexity Of Modern American Civil Litigation: Curse Or Cure?, Stephen B. Burbank
All Faculty Scholarship
Originally prepared for the 2007 meetings of the Italian Association of Comparative Law, this paper seeks to excavate the roots of procedural complexity in modern American litigation. Proceeding from the view that there is no accepted definition of complex litigation in the United States, the paper discusses five related phenomena that the author regards as consequential: (1) the architecture of modern American lawsuits and the procedural philosophy that architecture reflects, (2) the volume of litigation and the public and private policies, attitudes and arrangements that affect it, (3) the dynamic nature of, and dispersed institutional responsibility for, American law, (4) …
Access To Justice And The Evolution Of Class Action Litigation In Australia, Bernard Murphy, Camille Cameron
Access To Justice And The Evolution Of Class Action Litigation In Australia, Bernard Murphy, Camille Cameron
Articles, Book Chapters, & Popular Press
The federal and Victorian class action regimes are intended to facilitate aggregation of multiple claims. Aggregation can improve efficiency by combining similar claims and can enhance access to justice by providing a mechanism to litigate small claims. This article considers whether these efficiency and access aims are being achieved. The authors argue that whilst some developments in class action jurisprudence have been consistent with these legislative aims, other have not. Several features of Australian class action jurisprudence and practice have hampered the healthy development of the legislative regimes, including adverse costs orders, unclear threshold requirements, evasive posturing and unresolved class …
Informal Aggregation: Procedural And Ethical Implications Of Coordination Among Counsel In Related Lawsuits, Howard M. Erichson
Informal Aggregation: Procedural And Ethical Implications Of Coordination Among Counsel In Related Lawsuits, Howard M. Erichson
Faculty Scholarship
Even when related claims are not aggregated by any formal procedural mechanism, the lawyers involved in the separate lawsuits often coordinate their efforts. Such "informal aggregation" raises important questions about the boundaries of a dispute and the boundaries of the lawyer-client relationship. As an ethical matter, the central question is whether a lawyer owes ethical duties to a coordinating lawyer's client. Looking at confidentiality, loyalty, conflicts of interest, and malpractice, Professor Erichson suggests that ethical safeguards for clients of coordinating lawyers are neither strong enough nor explicit enough to provide adequate protection, and the problem inheres in the nature of …
Foreword Symposium: Multidistrict Litigation And Aggregation Alternatives: Foreword, Howard M. Erichson
Foreword Symposium: Multidistrict Litigation And Aggregation Alternatives: Foreword, Howard M. Erichson
Faculty Scholarship
On March 30, 2001, a somewhat surprising discussion took place among two judges, two plaintiffs' lawyers, a defense lawyer, and a legal scholar. The occasion was a Seton Hall Law Review symposium on federal multidistrict litigation ("MDL"). What made the discussion surprising was not what the participants said of their experiences with MDL, but rather the extent to which they discussed things other than MDL. Much of the discussion addressed state court litigation beyond the reach of MDL, and federal court aggregation techniques other than MDL. While the presenters left no doubt that MDL retains a central role in the …
Aggregation And Settlement Of Mass Torts, Edward H. Cooper
Aggregation And Settlement Of Mass Torts, Edward H. Cooper
Articles
The following essay is the pre-editing draft of the introduction to a paper delivered at a Mass Torts conference held at the University of Pennsylvania Law School in November 1999. Thc conference grew out of the work of the ad hoc Mass Torts Working Group that on February 15, 1999, delivered a Report to the Chief Justice of the United States and the judicial Conference of the United States. The Working Group, chaired by Third Circuit Judge Anthony J. Scirica, '65, included members drawn from several Judicial Conference committees, including the Advisory Committee on the Federal Rules of Civil Procedure, …
Aggregation And Settlement Of Mass Torts, Edward H. Cooper
Aggregation And Settlement Of Mass Torts, Edward H. Cooper
Articles
It is the way of symposia that, after conveners assign topics for discussion, participants interpret those topics to cover subjects that interest themselves. I understand my assignment to be discussion of "nonbankruptcy closure" and "settlement." The Judicial Conference Working Group on Mass Torts suggests possible approaches that might facilitate closure of mass tort claims by litigation or by settlement! This paper will explore two models prepared to illustrate the challenges that confront any approach to fair and efficient closure. The first model is the "All-Encompassing Model," while the second is a draft of settlement-class provisions for Federal Rule of Civil …