Outrageous Fortune and the Criminalization of Mass Torts

The case of the blameworthy-but-fortunate defendant has emerged as one of the most perplexing scenarios in mass tort litigation today. One need look no further than the front page of the newspaper to find examples of mass tort defendants said to have engaged in irresponsible conduct - even conduct that one might regard as morally outrageous in character - but that nonetheless advance eminently plausible contentions that they have not caused harm to others. This issue is not merely a matter for abstract speculation. A now-familiar mass tort scenario involves a defendant that markets a product without informing consumers about tentative suspicions of some health hazard. These initial suspicions, however, ultimately may not prove true. In fact, subsequent scientific research may support, perhaps convincingly, a contention by such a defendant that there simply is no causal link between its product and the malady from which the plaintiff suffers. The most prominent example of this first scenario is the ongoing controversy over silicone gel breast implants. A second and even more problematic situation involves a defendant that does not merely fail to warn consumers about a risk that may be associated with its product, but that affirmatively induces repeated use through outright fraud or obfuscation of the product\u27s risk. This second scenario describes the allegations advanced in the current controversy over nicotine in tobacco products. Here, the problem also is one of causation, but of a different sort: the centuries-old awareness of the hazards of smoking, including the widespread recognition that the practice can be exceedingly hard to quit, makes it difficult to attribute the maladies of current smokers to an informational shortfall brought about by the tobacco industry. Fraud is the cause of harm, after all, only when one\u27s fraudulent misrepresentations are apt to be believed and acted upon - only when, at the very least, other people are not saying loudly that one is lying. In this respect, the causal problem posed by the tobacco litigation is by no means restricted to that particular context. Rather, the same concerns likely would surface with respect to the many variations on the same theme that one might envision in the future for the alcohol industry, the fast-food industry, or the purveyors of other products with long-recognized health risks

Turning From Tort to Administration

My objective here is to challenge the notion that the recent mass tort settlements - for all their novel qualities in the mass tort area - are truly sui generis in the law. Rather, I contend that the rise of such settlements in tort mirrors the development of public administrative agencies earlier in this century - that, in both instances, powerful new institutions emerged outside preexisting channels of control to wield significant power over human lives and resources. I argue that courts usefully may draw upon familiar doctrines of judicial review in administrative law to form a conceptual framework for their analysis of mass tort settlements under Rule 23( e ). In other words, not only should the law turn from tort to administration in terms of the compensation system for mass tort plaintiffs, it also should make a similar shift in perspective when it comes to judicial review. Such an administrative perspective is not without its own limitations, however, and recognition of those constraints may point the way toward an agenda for further developments in public law

Aggregate Litigation Across the Atlantic and the Future of American Exceptionalism

In long-running debates over civil justice reform, two points remain broadly shared: the legal regime for civil litigation in this country is exceptional by comparison to European systems as a positive matter, and the United States is much the worse for it in normative terms. The positive dimension of this account pinpoints several exceptional features of the U.S. civil justice system: class actions, primarily on an opt-out basis; contingency-fee financing of litigation; rejection of Euro-style loser-pays rules that link responsibility for the fees of both sides to the outcome of the litigation; extensive reliance on juries as fact finders; costly pretrial discovery; and the availability of punitive damages in substantial areas of civil litigation, such as torts.\u27 One normative implication drawn by some proponents of civil justice reform, particularly as to tort litigation, is that the foregoing features generate a considerable and undesirable drag on the U.S. economy. A related criticism posits that the civil justice system yields a paltry ratio between the compensation actually received by claim- ants and the expenses incurred by the legal system to deliver it. Some popular proponents even go so far as to suggest that much of the U.S. civil justice landscape facilitates a kind of interest group rent-seeking by the plaintiffs\u27 bar, with the result of an overlawyered nation

Dietary Analysis of Batfishes (Lophiiformes: Ogcocephalidae) in the Gulf of Mexico

Stomach content analyses, performed on three species of batfishes, Halieutichthys aculeatus, Ogcocephalus declivirostris, and Ogcocephalus pantosticus collected in the Gulf of Mexico in summer (June-July) and fall (Oct.-Nov.) 2002 and 2003, revealed a variety of benthic invertebrates, particularly gastropods, polychaete worms, and xanthid crabs. Schoener\u27s dietary overlap indices (Sl) were calculated between the three species within the same seasons, and within each species between seasons. SI values indicated that each species consumed a different assemblage of prey and that two of the species exhibited temporal variation in diet

The Litigation-Arbitration Dichotomy Meets the Class Action

The article offers information on the process of litigation and arbitration treated by the U.S. Supreme Court. It states that the decisions related to litigation and arbitration taken in the court cases Shady Grove Orthopedic Associates, PA v. Allstate Insurance Co. and Stolt-Nielsen SA v. AnimalFeeds International Corp. reflect the need of more specified standpoints for them. It also states that there are similarities between the decisions related to litigations and arbitrations