Where to From Here for the Catholic Church- Recommendations 94 and 95 of the Redress and Civil Litigation Report

The Royal Commission into Institutional Responses to Child Sexual Abuse handed down its Final Report in December 2017. In 2015 it presented its interim Redress and Civil Litigation Report which contained final recommendations in relation to reform in civil litigation. Recommendations 94 and 95 of the Redress and Civil Litigation Report both directly and indirectly address the lack of legal entity for the Catholic Church in Australia and the problems this causes litigants seeking legal recompense. This paper considers the current legal status of the Catholic Church in Australia in light of the Recommendations

Rule 82 & Tort Reform: An Empirical Study of the Impact of Alaska’s English Rule on Federal Civil Case Filings

Alaska is the only American state that employs a variation of the “English Rule,” whereby the losing party in a civil case must pay the prevailing party’s attorneys’ fees. In recent years, advocates of tort reform have praised Alaska’s Civil Rule 82 as a model for tort reform to help rid the overburdened courts of low merit claims. But does Rule 82 really reduce meritless litigation? This study compares civil case filings in the District of Alaska to a sample of other comparable federal district courts. Although filings in the District of Alaska were lower than the national average, they were indistinguishable from the remainder of the sample. Other measures also failed to demonstrate any significant differences between civil cases in the District of Alaska and the other districts. These results suggest that reformers looking to reduce meritless litigation should look elsewhere for model reform measures

Discovering Discovery: Non-Party Access to Pretrial Information in the Federal Courts 1938-2006

In the modern era, the pretrial process is critical to the disposition of almost all litigation. The vast majority of cases never go to trial. Those which are contested at trial and upon appeal are often decided upon the results of the information gather before trial. This is true in both private litigation and in public interest cases where private attorneys general may only function effectively with court-enforced discovery. Despite the significance of the Article III courts to our society, transparency in their processes for resolving civil disputes has been severely compromised. Threats to openness emanate from multiple sources. This article considers the legal history and case law of one aspect of openness in the federal courts: public access to discovery material gathered by parties engaged in federal litigation. The public, the press, researchers, and various others have legitimate interests in this information. This right should include pretrial material unprotected by valid protective orders issued under the Federal Rules of Civil Procedure

Theories of Asbestos Litigation Cost - Why Two Decades of Procedural Reform Have Failed to Reduce Claimants\u27 Expenses

In twenty years of asbestos litigation, procedural reforms at all levels of the civil litigation system have failed to reduce plaintiffs’ attorneys’ fees. The result has been dramatic undercompensation of asbestos tort victims. This paper attempts to explain this remarkable fact using economic methodology. The paper offers three theories: First, that the continuing difficulty of assessing causation in asbestos and other mass tort cases predictably impedes the efforts of procedural reform to reduce costs; second, that changes in defendant and insurer risk attitudes have generated costly litigation; third, that collusion of plaintiffs’ attorneys to maintain prices cannot be ruled out. Each of these theories has some empirical support. Further, regardless of which turns out to be correct, the continuing high costs of civil litigation mean that resolution through the bankruptcy system will predictably harm future claimants, an unfair outcome. In the final assessment, civil procedure reform, the favored mechanism for resolving the asbestos case backlog, cannot achieve its objectives. Rather, reform must take into account substantive law and the motives and incentives of actors in the legal system. Holistic analysis of this type lends support to a comprehensive administrative remedies scheme, which has the best chance of decreasing the costs of compensation

The Tobacco Wars - Global Litigation Strategies

The Framework Convention on Tobacco Control (FCTC) identifies civil and criminal litigation as a public health strategy and promotes international cooperation (reporting, technical assistance, and information exchange). Holding the tobacco industry accountable through civil and criminal liability serves a number of public health objectives: punishes companies for hiding known health risks, manipulating nicotine content, and misleading the public; deters and preve nts future harmful behavior; compensates individuals and stake-holders for health care and other costs associated with smoking and exposure to environmental tobacco smoke (ETS); raises prices, resulting in lower tobacco consumption; increases disclosure of health risks, through labeling and advertising restrictions; and promotes transparency, by compelling discovery of internal industry documents. Tobacco litigation frequently has been used as a method for promoting tobacco control in the United States. Litigation is less common outside the United States, but increasingly advocates have brought innovative lawsuits abroad. This commentary explores global tobacco litigation strategies, with 4 key elements: compensation/recovery, advertising restrictions, criminal liability, and public interest writ litigation. The commentary argues that perhaps the most important effect of tobacco litigation has been to transform public and political perceptions about risk and responsibility in smoking, making clear what manufacturers knew, how they concealed this knowledge, and how they manipulated consumers. Tort law has reframed the debate from personal to corporate responsibility. However, the industry still manages, at least in the political realm, to alter the discourse to one involving freedom of choice for the smoker, the evils of big government, unfair taxation, and the influence of trial lawyers. Furthermore, now that the tobacco industry is aggressively seeking new markets in the poorest, least-regulated countries, litigation will take on new importance. The most promising strategies will use a human rights framework, arguing that tobacco is so detrimental that it violates the rights to health, life, and a sanitary environment

Why Civil and Criminal Procedure Are So Different: A Forgotten History

Much has been written about the origins of civil procedure. Yet little is known about the origins of criminal procedure, even though it governs how millions of cases in federal and state courts are litigated each year. This Article’s examination of criminal procedure’s origin story questions the prevailing notion that civil and criminal procedure require different treatment. The Article’s starting point is the first draft of the Federal Rules of Criminal Procedure—confidential in 1941 and since forgotten. The draft reveals that reformers of criminal procedure turned to the new rules of civil procedure for guidance. The contents of this draft shed light on an extraordinary moment: reformers initially proposed that all litigation in the United States, civil and criminal, be governed by a unified procedural code. The implementation of this original vision of a unified code would have had dramatic implications for how criminal law is practiced and perceived today. The advisory committee’s final product in 1944, however, set criminal litigation on a very different course. Transcripts of the committee’s initial meetings reveal that the final code of criminal procedure emerged from the clash of ideas presented by two committee members, James Robinson and Alexander Holtzoff. Holtzoff’s traditional views would ultimately persuade other members, cleaving criminal procedure from civil procedure. Since then, differences in civil and criminal litigation have become entrenched and normalized. Yet, at the time the Federal Rules of Criminal Procedure were drafted, a unified code was not just a plausible alternative but the only proposal. The draft’s challenge to the prevailing notion that civil and criminal wrongs inherently require different procedural treatment is a critical contribution to the growing debate over whether the absence of discovery in criminal procedure is justified in light of discovery tools afforded by civil procedure. The first draft of criminal procedure, which called for uniform rules to govern proceedings in all civil and criminal courtrooms, suggests the possibility that current resistance to unification is, to a significant degree, historically contingent

National Juries for National Cases: Preserving Citizen Participation in Large-Scale Litigation

Procedural evolution in complex litigation seems to have left the civil jury behind. Reliance on aggregating devices, such as multidistrict litigation and class actions, as well as settlement pressure created by “bellwether” cases, has resulted in cases of national scope being tried by local juries. Local juries thus have the potential to impose their values on the rest of the country. This trend motivates parties to forum-shop, and some commentators suggest eliminating jury trials in complex cases altogether. Yet the jury is at the heart of our uniquely American understanding of civil justice, and the Seventh Amendment mandates its use in federal cases. This Article makes a bold proposal to align the jury assembly mechanism with the scope of the litigation: In cases of national scope, juries would be assembled from a national pool. This proposal would eliminate incentives for parties to forum-shop, and it would make the decisionmaking body representative of the population that will feel the effects of its decision. The Article argues that we would see greater legitimacy for decisions rendered by a national jury in national cases. Moreover, it argues that geographic diversification of the jury would enhance the quality of decisionmaking. Finally, national juries would preserve the functional and constitutional values of citizen participation in the civil justice system