Why me? The role of private trustees in complex claims resolution

Stanford Law Review

Volumn 57, Issue 5, 2005, Pages 1391-1428

  Vairo, Georgene ^a  

^a Loyola Law School Los Angeles   (United States)

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EID: 33646018028     PISSN: 00389765     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (225)

1. President George W. Bush appointed L. Paul Bremer III as Presidential Envoy to Iraq on May 6, 2003, and in this capacity he served as the administrator of the Coalition Provisional Authority. Prior to being in Iraq, Ambassador Bremer, a twenty-three-year State Department employee, was chairman and chief executive officer of Marsh Crisis Consulting Company, a crisis management firm owned by the financial services firm Marsh & McLennan. From 1989 to 2000, he was the managing director of Kissinger Associates, a strategic consulting firm headed by former secretary of state Henry Kissinger. Coalition Provisional Authority, Biographies: Ambassador Paul Bremer, at http://www.cpa-iraq.org/bios/ (Mar. 30, 2004).
2. Judge Robert R. Merhige appointed me to a position as a trustee in November 1988. I was appointed chairperson of the Trust by my cotrustees in August 1989, and served in that capacity until the Trust completed its business and the trustees were discharged in March 2000. See Georgene M. Vairo, Georgine, The Dalkon Shield Claimants Trust, and the Rhetoric of Mass Tort Claims Resolution, 31 LOY. L.A. L. REV. 79 (1997) [hereinafter Vairo, Rhetoric];
3. Georgene M. Vairo, The Dalkon Shield Claimants Trust: Paradigm Lost (or Found), 61 FORDHAM L. REV. 617 (1992) [hereinafter Vairo, Paradigm Lost].
4. Kenneth Feinberg was appointed as Special Master of the VCF on November 26, 2001. Attorney General John Ashcroft, Remarks at Announcement of the Appointment of the Special Master to Administer the September 11 Victim Compensation Fund, at http://www.usdoj.gov/ag/speeches/2001/agcrisisremarks11_26.htm (Nov. 26, 2001);
5. see also Editorial, The Victims' New Referee, N.Y. TIMES, Dec. 1, 2001, at A26 ("In a long career resolving complicated disputes, Kenneth Feinberg has never seen a case as tangled and emotionally volatile as the one he confronts now.").
6. See, e.g., Linda Silberman, Judicial Adjuncts Revisited: The Proliferation of Ad Hoc Procedure, 137 U. PA. L. REV. 2131, 2131 (1989) ("One clear example of such ad hoc proceduralism comes via the increased number of judicial adjuncts [magistrate judges and special masters], who customize procedure for particular and individual cases.").
7. See, e.g., Judith Resnik, For Owen M. Fiss: Some Reflections on the Triumph and Death of Adjudication, 58 U. MIAMI L. REV. 173, 185-91 (2003) (discussing the shift from adjudication by judges to adjudication by agencies and ADR).
8. The September 11th Victims Compensation Fund, unlike others that emerged out of litigation, was created by Congress in the expectation of litigation.
9. JAMES BOYD WHITE, FROM EXPECTATION TO EXPERIENCE: ESSAYS ON LAW AND LEGAL EDUCATION 108 (1999).
10. Robert P. Burns, The Distinctiveness of Trial Narrative, in THE TRIAL ON TRIAL: TRUTH AND DUE PROCESS 157, 157 (Antony Duff et al. eds., 2004);
11. see also Robert P. Burns, A Conservative Perspective on the Future of the American Jury Trial, 78 CHI.-KENT. L. REV. 1319, 1319 (2003) ("[T]he American jury trial, as we have developed it, is one of the greatest achievements of American public culture.").
12. Gillian K. Hadfield, Where Have All the Trials Gone? Settlements, Nontrial Adjudications, and Statistical Artifacts in the Changing Disposition of Federal Civil Cases, 1 J. EMPIRICAL LEGAL STUD. 705, 706 (2004).
13. For a discussion of the possible reasons for the decline of trials, see Judith Resnik, Migrating, Morphing, and Vanishing: The Empirical and Normative Puzzles of Declining Trial Rates in Courts, 1 J. EMPIRICAL LEGAL STUD. 783 (2004).
14. See generally Abram Chayes, The Role of the Judge in Public Law Litigation, 89 HARV. L. REV. 1281 (1976) (describing the evolution from the private law model to the public law model).
15. See Richard Marcus, Public Law Litigation and Legal Scholarship, 21 U. MICH. J.L. REFORM 647 (1988) (assessing the impact of Chayes's article and characterizing it as the most famous of all law review articles).
16. See Chayes, supra note 10 (describing the evolution from the private law model to the public law model).
17. Id. at 1282.
18. Id. at 1284.
19. Id.
20. Id.
21. See Jack B. Weinstein, Ethical Dilemmas in Mass Tort Litigation, 88 NW. U. L. REV. 469, 472, 473-74 nn.10-17 (1994) ("Mass tort cases are akin to public litigation, involving restructuring of institutions by the courts to protect constitutional rights.").
22. David Rosenberg earlier had argued that mass tort litigation is a form of public law litigation. See David Rosenberg, The Causal Connection in Mass Exposure Cases: A "Public Law" Vision of the Tort System, 97 HARV. L. REV. 851 (1984).
23. Weinstein, supra note 17, at 474.
24. Id.
25. Id.
26. Id. at 475.
27. Id. at 475-76.
28. Linda S. Mullenix, Mass Tort as Public Law Litigation: Paradigm Misplaced, 88 Nw. U. L. REV. 579, 580-81 (1994) (criticizing Judge Weinstein for treating mass tort cases as public law cases) [hereinafter Mullenix, Paradigm Misplaced];
29. see also Linda S. Mullenix, Resolving Aggregate Mass Tort Litigation: The New Private Law Dispute Resolution Paradigm, 33 VAL. U. L. REV. 413, 421-31 (1999) [hereinafter Mullenix, Private Law Paradigm] (critiquing the theory that mass tort litigation is akin to public law litigation).
30. Mullenix, Paradigm Misplaced, supra note 23, at 581.
31. Id.
32. Id.
33. 521 U.S. 591 (1997).
34. 539 U.S. 111 (2003), aff'g in part and vacating in part 273 F.3d 249 (2d Cir. 2001).
35. Weinstein, supra note 17, at 474. Indeed, state-claim-based litigation is deserving of the time and attention of federal judges. See N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982) (holding that a state contract claim must be adjudicated by an Article III judge, not a bankruptcy judge).
36. See Vairo, Rhetoric, supra note 2 (discussing evolution of mass tort litigation).
37. STEPHEN J. CARROLL ET AL., ASBESTOS LITIGATION COSTS AND COMPENSATION: AN INTERIM REPORT (2002).
38. For example, asbestos litigation in the U.S. court system has cost the American economy more than fifty thousand jobs and may total as much as $275 billion. JOSEPH E. STIGLITZ ET AL., THE IMPACT OF ASBESTOS LIABILITIES ON WORKERS IN BANKRUPT FIRMS 3_(2002).
39. Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) (striking down a Federal Rule of Civil Procedure 23(b)(3) asbestos class action settlement).
40. 527 U.S. 815 (1999) (striking down a Federal Rule of Civil Procedure 23(b)(1)(B) mandatory asbestos class action settlement).
41. Vairo, Rhetoric, supra note 2;
42. see also Joseph F. Rice & Nancy Worth Davis, The Future of Mass Tort Claims: Comparison of Settlement Class Action to Bankruptcy Treatment of Mass Tort Claims, 50 S.C. L. REV. 405 (1999) (predicting that the Amchem and Ortiz decisions would, unfortunately, lead to greater use of Chapter 11 to resolve mass tort cases and arguing that class action settlements are preferable to the use of Chapter 11).
43. See Rice & Davis, supra note 35.
44. Georgene Vairo, Mass Torts Bankruptcies: The Who, the Why and the How, 78 AM. BANKR. L.J. 93, 93-95 (2004) (describing increased use of bankruptcy to resolve mass tort litigation).
45. See Adam Benforado et al., Broken Scales: Obesity and Justice in America, 53 EMORY L.J. 1645, 1721 (2004) (discussing how the tort bar's discovery efforts led to breakthroughs in tobacco litigation and exposing the tobacco industry as a "vampiric apparition").
46. See Edward F. Sherman, Complex Litigation: Plagued by Concerns over Federalism, Jurisdiction and Fairness, 37 AKRON L. REV. 589, 589-93 (2004) (describing the evolution of complex litigation and noting problems raised by innovative approaches to the resolution of complex litigation).
47. See 28 U.S.C. § 1407 (2000).
48. See FED. R. CIV. P. 23.
49. See infra notes 101-04 and 112 (discussing the Class Action Fairness Act of 2005, Pub. L. No. 109-2, 119 Stat. 4 (codified in scattered sections of 28 U.S.C.)), enacted in February 2005).
50. See 28 U.S.C. § 1334(b) (2000). Section 1334 provides for original and exclusive jurisdiction over all cases under Title 11 (the Bankruptcy Code) and further provides in relevant part that "the district courts shall have original but not exclusive jurisdiction of all civil proceedings . . . arising in or related to cases under title 11." Id. Section 1334 has been used in a number of mass tort cases to effect consolidation. See, e.g., In re Dow Corning Corp., 86 F.3d 482, 486-87 (6th Cir. 1996); A.H. Robins Co. v. Piccinin, 788 F.2d 994 (4th Cir. 1986).
51. See Georgene M. Vairo, Reinventing Civil Procedure: Will the New Procedural Regime Help Resolve Mass Torts?, 59 BROOK. L. REV. 1065, 1073 & n.40 (1993). For a discussion of the problems associated with the use of offensive nonmutual collateral estoppel, see Hardy v. Johns-Manville Sales Corp., 681 F.2d 334 (5th Cir. 1982).
52. See Frederick C. Dunbar & Denise Neumann Martin, Clearing Uninjured Plaintiffs from the Tort System: The Road to a Solution, LEGAL BACKGROUNDER, July 25, 2003, at 1, available at http://www.wlf.org/upload/07-25-03dunbar.pdf (explaining how many states have instituted "inactive dockets" for "unimpaired claimants").
53. See Lawrence Fitzpatrick, The Center for Claims Resolution, LAW & CONTEMP. PROBS., Autumn 1990, at 13 (discussing methods of payment for asbestos claims used by the Center for Claims Resolution (CCR), a consortium for claims payment joined by numerous asbestos defendants).
54. See Georgene Vairo, Judicial v. Congressional Federalism: The Implications of the New Federalism Decisions on Mass Tort Cases and Other Complex Litigation, 33 LOY. L.A. L. REV. 1559, 1576-89 (2000) (discussing federal courts' use of the All Writs Act to ensure the primacy of federal dispute resolution in mass tort cases);
55. see also Lonny Sheinkopf Hoffman, Syngenta, Stephenson and the Federal Judicial Injunctive Power, 37 AKRON L. REV. 605, 618 (2004) (discussing limits on federal judicial power to enjoin state court proceedings).
56. For example, the MANUAL FOR COMPLEX LITIGATION (FOURTH) (2004) makes clear that judges in complex cases ought to promote settlements. See, e.g., id. § 13.13 ("Specific Techniques to Promote Settlement").
57. See Elizabeth J. Cabraser, Life After Amchem: The Class Struggle Continues, 31 LOY. L.A. L. REV. 373 (1998) (discussing how state and federal courts can and are continuing to certify settlement classes); see, e.g., Klay v. Humana, Inc., 382 F.3d 1241 (11th Cir. 2004) (Tjoflat, J.) (certifying single RICO class of virtually all doctors in the United States against almost all HMOs and other health insurers in the country); Carnegie v. Household Int'l, Inc., 376 F.3d 656 (7th Cir. 2004) (Posner, J.) (affirming certification of a RICO class of millions and a state law contract claim case for trial after trial judges rejected class settlement as unfair) ("The realistic alternative to a class action is not 17 million individual suits, but zero individual suits, as only a lunatic or a fanatic sues for $30. But a class action has to be unwieldy indeed before it can be pronounced an inferior alternative - no matter how massive the fraud or other wrongdoing that will go unpunished if class treatment is denied - to no litigation at all").
58. See, e.g., Judith Resnik, Failing Faith: Adjudicatory Procedure in Decline, 53 U. CHI. L. REV. 494, 544-47 (1986) [hereinafter Resnik, Failing Faith] (criticizing declining use of judicial adjudication to resolve claims);
59. Judith Resnik, Managerial Judges, 96 HARV. L. REV. 376 (1982) [hereinafter Resnik, Managerial Judges] (critiquing managerial judging).
60. Vairo, supra note 37, at 106-09 (describing use of 11 U.S.C. § 524(g) prepackaged bankruptcy settlements).
61. Air Transportation Safety and System Stabilization Act, Pub. L. No. 107-42, § 403, 115 Stat. 230, 237 (2001);
62. see generally Georgene Vairo, Remedies for Victims of Terrorism, 35 LOY. L.A. L. REV. 1265, 1273-84 (2002) (discussing the establishment of the VCF).
63. See Vairo, supra note 44, at 1093-94; Vairo, Paradigm Lost, supra note 2, at 618, 654-58.
64. Indeed, current Rule 53(a)(1)(B)(ii) exempts from the requirement of exceptional circumstances for the appointment of a master appointments that involve "essentially ministerial determinations." FED. R. CIV. P. 53 advisory committee's note of 2003.
65. Vairo, Paradigm Lost, supra note 2, at 629-32.
66. Peter H. Schuck, Mass Torts: An Institutional Evolutionist Perspective, 80 CORNELL L. REV. 941, 952-53 (1995).
67. Mullenix, Private Law Paradigm, supra note 23, at 431-47.
68. See supra notes 43-47 and accompanying text.
69. See MANUAL FOR COMPLEX LITIGATION (FOURTH), supra note 48, §§ 10.2, 11.214, 13.13.
70. For example, consider the settlements obtained by the state attorneys general in the tobacco litigation and the federal tobacco litigation brought by the U.S. Attorney General. The gun litigation has been characterized by some successful cases brought by cities and other governmental agencies. See generally Sue Reisinger, High Noon, LAW.COM, Oct. 29, 2004, available at http://www.law.com/jsp/newswire_article.jsp?id=1098891006017.
71. MANUAL FOR COMPLEX LITIGATION (FOURTH), supra note 48, § 10.14.
72. Id. § 11.52.
73. Id. § 11.51.
74. Id. §§ 11.51-.52.
75. Id.
76. Owen M. Fiss, Against Settlement, 93 YALE L.J. 1073 (1984).
77. See generally Silberman, supra note 4.
78. See Resnik, Managerial Judges, supra note 50.
79. Resnik, Failing Faith, supra note 50, at 544.
80. See Penelope Pether, Inequitable Injunctions: The Scandal of Private Judging in the U.S. Courts, 56 STAN. L. REV. 1435 (2004).
81. See Fiss, supra note 66.
82. Geoffrey C. Hazard, Jr., Communitarian Ethics and Legal Justification, 59 U. COLO. L. REV. 721, 740 (1988).
83. JACK B. WEINSTEIN, INDIVIDUAL JUSTICE IN MASS TORT LITIGATION 143 (1995) ("[I]t is close to impossible for one judge (particularly if he or she hopes to keep up with the rest of the caseload) personally to conduct the necessary fact-finding and negotiations, and then to develop, implement, and oversee a complicated ongoing administrative resolution of a mass tort case. Extending the reach of the court, while at the same time keeping all parties and issues concentrated in one forum, requires help.")
84. See, e.g., AM. COLLEGE OF TRIAL LAWYERS, MASS TORT LITIGATION MANUAL 83-84 (forthcoming 2005) [hereinafter ACTL MANUAL];
85. MANUAL FOR COMPLEX LITIGATION (FOURTH), supra note 48, § 11.52.
86. FED. R. CIV. P. 53 advisory committee's note of 2003.
87. FED. R. CIV. P. 53(a)(1)(B)(i) (concerning appointment to hold trial proceedings or to make or recommend findings of fact).
88. FED. R. CIV. P. 53 advisory committee's note of 2003.
89. THOMAS E. WILLGING ET AL., SPECIAL MASTERS' INCIDENCE AND ACTIVITY: REPORT TO THE JUDICIAL CONFERENCE ON CIVIL RULES AND ITS SUBCOMMITTEE ON SPECIAL MASTERS 4-5 (2000).
90. Id. at 5.
91. William B. Rubenstein, A Transactional Model of Adjudication, 89 GEO. L.J. 371 (2001);
92. Howard M. Erichson, A Typology of Aggregate Settlements, 80 NOTRE DAME L. REV. (forthcoming 2005).
93. See Paul D. Rheingold, Ethical Constraints on Aggregated Settlements of Mass-Tort Cases, 31 LOY. L.A. L. REV. 395 (1998) (discussing the common practice of aggregated settlements and noting ethics issues).
94. There is an ethics issue of how an attorney can settle multiple clients' claims when those clients will not be treated "equally." See MODEL RULES OF PROF'L CONDUCT R. 1.8(g) (2002) ("Conflicts of Interest: Current Clients: Specific Rules");
95. see also MODEL CODE OF PROF'L RESPONSIBILITY DR 5-106 (1983) ("Settling Similar Claims of Clients").
96. See supra notes 40-48 and accompanying text.
97. See, e.g., Catherine T. Struve, The FDA and the Tort System: Post Marketing Surveillance, Compensation, and the Role of Litigation, 5 YALE J. HEALTH POL'Y L. & ETHICS (forthcoming Summer 2005).
98. Some of Judith Resnik's arguments in support of adjudication stem from this idea. See Resnik, supra note 9, at 199 ("Adjudication's proponents in the academy have been a part, sadly, of the story of adjudication's eclipse. First, by overstating the heroic proportions of the job of judging, they have created expectations that the job did not often met [sic].").
99. U.S. CONST, art. III, § 1.
100. With respect to the federal judiciary, the Feeney Amendment, Pub. L. No. 108-21, § 401, 117 Stat. 650, 667-76 (2003), which eliminated a statutory requirement that at least three federal judges serve on the U.S. Sentencing Commission, has been characterized by a district court as an unconstitutional violation of separation of powers. United States v. Detwiler, 338 F. Supp. 2d 1166 (D. Or. 2004). Another district court held that the "blacklist" requirement of the Feeney Amendment, which requires that judges who grant downward sentencing departures other than when requested to do so by the prosecutor be immediately reported to the Attorney General and the Senate Judiciary Committee, chills judicial independence and violates separation of powers principles. United States v. Mendoza, No. CR 03-730 DT, 2004 U.S. Dist LEXIS 1449 (C.D. Cal. Jan. 12, 2004).
101. See, e.g., Neil A. Lewis, Mixed Results for Bush in Battle over Judges, N.Y. TIMES, Oct. 22, 2004, at A1 (discussing events such as the Bush White House's turn to the conservative Federalist Society as the source for selecting candidates for federal judicial appointment and Democratic Senators' response of seeking to block candidates other than merely those with "egregious faults" because the White House was "trying to push the courts in a conservative direction" in order to achieve the "political benefit of pleasing political conservatives.").
102. Breyer Questions His Impartiality in 2000 Election Ruling, ASSOCIATED PRESS, Oct. 26, 2004 (stating that in Justice Breyer's view, judges try to depend on the rule of law, but that "people are great self-kidders"), available at http://www.law.com/jsp/scm/PubArticleSCM.jsp?id=1098737118377.
103. The fact that a political actor's actions are motivated by reelection concerns has been shown in the case of House members and is likely to hold true for elected judges as well. See RICHARD F. FENNO, JR., HOME STYLE: HOUSE MEMBERS IN THEIR DISTRICTS 37 (1978) (arguing that House members "try to achieve, in varying combinations, three basic personal goals: reelection, power inside Congress, and good public policy");
104. RICHARD F. FENNO, JR., CONGRESSMEN IN COMMITTEES 1 (1973) (same, but adding that congressmen are also motivated by interests in setting up careers following their congressional terms and aggrandizing personal gain).
105. Emily Heller, Judicial Races Get Meaner, NAT'L L.J., Oct. 25, 2004 (discussing how key interest groups have lined up against each other in fifteen states involving twenty-nine state supreme court judgeships), http://www.law.com/jsp/newswire_article.jsp?id=1098217051328;
106. see also Julie Kay, Christian Group's Survey Reveals Judicial Candidates' Opinions, MIAMI DAILY BUS. REV., Oct. 28, 2004 (discussing Florida State Bar Association judicial ethics committee ruling that judicial candidates may announce their views on disputed issues as long as they also stress that they will uphold the law), http://www.law.com/jsp/newswire_article.jsp?id=1098907051693;
107. Adam Liptak, Judicial Races in Several States Become Partisan Battlegrounds, N.Y. TIMES, Oct. 24, 2004, at A1 (discussing battle over forty supreme court seats in twenty states).
108. Richard A. Nagareda, In the Aftermath of the Mass Tort Class Action, 85 GEO. L.J. 295, 346-49 (1996) ("The breast implant litigation provides only one example of the confluence of mass torts and contemporary political controversy. The resolution of claims by military personnel exposed to the defoliant Agent Orange remains intertwined, to this day, with the efforts of the nation as a whole to come to grips with the Vietnam War.").
109. See, e.g., Edmund L. Andrews, Bush Puts Social Security at Top of Economic Conference, N.Y. TIMES, Dec. 16, 2004, at A30 (reporting that when opening his campaign for his economic agenda at the "White House Conference on the Economy," President Bush called for ending frivolous lawsuits and "restricting lawsuits brought against corporations," and noting that many panelists had long records of supporting the President's policies); see infra notes 101-04 and 112 (discussing the recent Class Action Fairness Act).
110. The "maturity" of a mass tort has been addressed in Shiela Birnbaum, Class Certification - The Exception, Not the Rule, 41 N.Y.L. SCH. L. REV. 347, 348-49 (1997) (noting the problem of premature mass tort class action filings; for example, in the Felbatol litigation, a class action was filed before any individual lawsuits were);
111. Deborah R. Hensler & Mark A. Peterson, Understanding Mass Personal Injury Litigation: A Socio-Legal Analysis, 59 BROOK. L. REV. 961, 1019-30 (1993);
112. Francis McGovern, Resolving Mature Mass Tort Litigation, 69 B.U. L. REV. 659 (1989); Vairo, supra note 44, at 1093-94.
113. See, e.g., Liggett Group Inc. v. Engle, 853 So. 2d 434, 442 (Fla. Dist. Ct. App. 2003) (vacating class certification in tobacco litigation in which the jury awarded compensatory damages and $145 billion in punitive damages against tobacco companies), review granted, 873 So. 2d 1222 (Fla. 2004).
114. Id. at 469.
115. Engle v. Liggett Group, Inc., 873 So. 2d at 1222. Note, however, for the purposes of this Article, that the tobacco industry refused to settle any personal injury cases, obviating the need for a settlement fund of any kind.
116. Vairo, supra note 47, at 1564.
117. Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997).
118. Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (clarifying standards for making summary judgment motions and for granting summary judgment); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (same); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) (same).
119. 509 U.S. 579 (1993).
120. See infra notes 112-15.
121. See Bill Tracking Report, Class Action Fairness Act of 2003, H.R. 1115, 108th Cong., LEXIS 2003 Bill Tracking H.R. 1115.
122. See Bill Tracking Report, Class Action Fairness Act of 2005, H.R. 516, 109th Cong., LEXIS 2005 Bill Tracking H.R. 516.
123. 151 CONG. REC. S999 (daily ed. Feb. 7, 2005) (statement of Sen. Specter).
124. Edward A. Purcell, Jr., Origins of a Social Litigation System, in LITIGATION AND EQUALITY: FEDERAL DIVERSITY JURISDICTION IN INDUSTRIAL AMERICA, 1870-1958, at 99 (1992).
125. See Vairo, supra note 47.
126. See Kevin M. Clermont & Theodore Eisenberg, Do Case Outcomes Really Reveal Anything About the Legal System? Win Rates and Removal Jurisdiction, 83 CORNELL L. REV. 581 (1998);
127. Kevin M. Clermont & Theodore Eisenberg, Litigation Realities, 88 CORNELL L. REV. 119 (2002). A recently published study by the Federal Judicial Center shows that defense attorneys believe that in class action cases the federal forum is more beneficial to their clients' interests and that they remove cases based on state law to the federal courts for that reason.
128. See THOMAS E. WILLGING & SHANNON R. WHEATMAN, ATTORNEY REPORTS ON THE IMPACT OF AMCHEM AND ORTIZ ON CHOICE OF A FEDERAL OR STATE FORUM IN CLASS ACTION LITIGATION, A REPORT TO THE ADVISORY COMMITTEE ON CIVIL RULES REGARDING A CASE-BASED SURVEY OF ATTORNEYS 4-5, 7-8, 18, 29-31 (2004). However, the study indicates that the rate of class certification by state and federal judges for the sample involved is virtually the same. The study also reported, though, that federal judges were more than twice as likely to deny class certification. Id. at 4, 8-9.
129. See Vairo, supra note 47.
130. Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938) (holding that there is no federal general common law).
131. Guaranty Trust Co. v. York, 326 U.S. 99, 109 (1945) (stating that the result in a federal court should be the same as in a state court); see also Hanna v. Plumer, 380 U.S. 460, 468 (1965) (discussing the twin aims of Erie doctrine: prevention of forum shopping and equal administration of the law).
132. See ACTL MANUAL, supra note 74, at 263-65 (describing so-called "judicial hellholes," sought out by plaintiffs' lawyers, that have judges and juries likely to award large verdicts against corporations).
133. The Class Action Fairness Act had been the object of serious congressional attention for the last few years. See Class Action Fairness Act of 2003, H.R. 1115, 108th Cong. (2003). The Senate version became the subject of compromise. See Class Action Fairness Act of 2003, S. 274, 108th Cong (2003). In February 2004, S. 2062, the Class Action Fairness Act of 2004, was introduced in the Senate. See Class Action Fairness Act of 2004, S. 2062, 108th Cong. (2004). Its jurisdictional provisions were substantially similar to the 2003 Senate version.
134. The bill appeared to have stalled, see 150 CONG. REC. S1191 (daily ed. Feb. 11, 2004) (placing S. 2062 on the calendar), but was reintroduced early in the 109th Congress. Class Action Fairness Act of 2005, S. 5, 109th Cong. (2005). It passed the Senate and the House and was signed into law by the President on February 18, 2005. See Class Action Fairness Act of 2005, Pub. L. No. 109-2, 119 Stat. 4 (codified in scattered sections of 28 U.S.C.).
135. The Litigation Abuse Reform Act, H.R. 4571, 108th Cong. (2004), passed by the House of Representatives in September 2004, would amend Rule 11 to its earlier, more draconian form, would apply Rule 11 in certain state cases, and would prevent forum shopping. The bill was reintroduced in the House in early 2005. See H.R. 420, 109th Cong. (2005).
136. H.R. 420, 109th Cong. (2005).
137. See Lonny S. Hoffman, The Trilogy of 2003: Venue, Forum Non Conveniens & Multidistrict Litigation, 24 ADVOCATE 76 (2003) (describing 2003 amendments to the Texas procedural rules).
138. Id.
139. Samuel J. Rascoff & Richard L. Revesz, The Biases of Risk Tradeoff Analysis: Towards Parity in Environmental and Health-and-Safety Regulation, 69 U. CHI. L. REV. 1763, 1797-98 (2002) (critiquing theory of agency capture pursuant to which a single interest group will capture the regulatory process and successfully impose its views on the captured agency).
140. See Fiss, supra note 66, at 1084-85 ("Given the underlying purpose of settlement - to avoid trial - the so-called 'findings' and 'conclusions' are necessarily the products of a bargain between the parties rather than of a trial and an independent judicial judgment. . . . Even assuming that the consent is freely given and authoritative, the bargain is at best contractual and does not contain the kind of enforcement commitment already embodied in a decree that is the product of a trial and the judgment of a court.").
141. See Resnik, Managerial Judges, supra note 50, at 425 ("Transforming the judge from adjudicator to manager substantially expands the opportunities for judges to use - or abuse - their power.").
142. See Resnik, supra note 5, at 181 (noting that Article III judges worked with Congress to create a workforce of over four thousand non-Article III auxiliary judges such as magistrate and bankruptcy judges, administrative law judges, and hearing officers) (citing Owen M. Fiss, The Bureaucratization of the Judiciary, 92 YALE L.J. 1442 (1983)).
143. See Carrie Menkel-Meadow, From Legal Disputes to Conflict Resolution and Human Problem Solving: Legal Dispute Resolution in a Multidisciplinary Context, 54 J. LEGAL EDUC. 7, 26-29 (2004) (discussing possibilities for creative and innovative problem solving in ADR context);
144. Georgene M. Vairo, Multi-Tort Cases: Cause for More Darkness on the Subject, or a New Role for Federal Common Law?, 54 FORDHAM L. REV. 167 (1985) (arguing that the application of federal common law in mass tort cases leads to fairness and efficiency);
145. cf. Mariano-Florentino Cuellar, Rethinking Regulatory Democracy, 57 ADMIN L. REV. (forthcoming 2005) (demonstrating the impact of private party participation in rulemaking process).
146. See Resnik, supra note 5, at 175 n.12; see also John Langbein, What ERISA Means by "Equitable": The Supreme Court Trail of Error in Russel, Mertens, and Great-West, 103 COLUM. L. REV. 1317 (2003);
147. Daniel J. Meltzer, The Supreme Court's Judicial Passivity, 2002 SUP. CT. REV. 343.
148. 527 U.S. 308, 330-35 (1999) (holding that the district court lacked authority to issue a preliminary injunction because such a remedy was historically unavailable from a court of equity; reasoning that various weighty considerations both for and against creating the remedy at issue should be resolved in Congress, and should not be resolved by federal courts).
149. 534 U.S. 204, 221 (2002) (refusing to allow legal relief where Congress expressly permitted only equitable relief).
150. Judith Resnik, Constricting Remedies: The Rehnquist Judiciary, Congress, and Federal Power, 78 IND. L.J. 223, 224 (2003).
151. Id.
152. See Pether, supra note 70.
153. Russell B. Korobkin, The Role of Law in Settlement (UCLA Sch. of Law Research Paper No. 04-17, Sept. 2004).
154. See Robert A. Leflar, Choice-Influencing Considerations in Conflicts Law, 41 N.Y.U. L. REV. 267, 270, 294-95, 325-27 (1966) (emphasizing in choice of law analysis the application of the better rule of law, and arguing that courts necessarily weighed substantive content in their role as creators of the common law);
155. see also Stanley E. Cox, Applying the Best Law, 52 ARK. L. REV. 9, 18 (1999) ("Justice was best neutrally achieved by applying the best rule possible to the case. Application of such a rule would further the parties' expectations that courts would deal with them justly."). See generally Vairo, supra note 121.
156. See Stephan Landsman, A Chance to be Heard: Thoughts About Schedules, Caps, and Collateral Source Deduction in the September 11th Victim Compensation Fund, 53 DEPAUL L. REV. 393 (2003) (discussing collateral source rules considered by Special Master Kenneth Feinberg);
157. see also Martha Chamallas, The September 11th Victim Compensation Fund: Rethinking the Damages Element in Injury Law, 71 TENN. L. REV. 51 (2003);
158. Deborah R. Hensler, Money Talks: Searching for Justice Through Compensation for Personal Injury and Death, 53 DEPAUL L. REV. 417, 449 (2003) (discussing the need to provide rules to cover the particular circumstances of each victim, including domestic partners);
159. David Hechler, Intensive Care, NAT'L L.J., July 1, 2004, http://www.law.com/jsp/newswire_article.jsp?id=1088439689003.
160. Colin S. Diver, The Optimal Precision of Administrative Rules, 93 YALE L.J. 65 (1983);
161. Louis Kaplow, Rules Versus Standards: An Economic Analysis, 42 DUKE L.J. 557 (1992);
162. Russell B. Korobkin, Behavioral Analysis and Legal Form: Rules vs. Standards Revisited, 79 OR. L. REV. 23 (2000).
163. See, e.g., Symposium, After Disaster: The September 11th Compensation Fund and the Future of Civil Justice, 53 DEPAUL L. REV. 205 (2003) (discussing the appointment of Special Master Kenneth Feinberg).
164. See Peter H. Schuck, The Role of Judges in Settling Complex Cases: The Agent Orange Example, 53 U. CHI. L. REV. 337, 344-46, 362 (1986).
165. Schuck, supra note 56, at 987 (1995) (describing how many claims facilities are based on an administrative model); Schuck, supra note 133 (same). All administrative agencies perform some discretionary functions. The question is one of degree.
166. In re "Agent Orange" Prod. Liab. Litig., 689 F. Supp. 1250, 1257-58 (E.D.N.Y. 1988).
167. Linda S. Mullenix & Kristen B. Stewart, The September 11th Victim Compensation Fund: Fund Approaches to Resolving Mass Tort Litigation, 9 CONN. INS. L.J. 121, 149-50 (2003).
168. See Vairo, Paradigm Lost, supra note 2.
169. See George L. Priest, The Problematic Structure of the September 11th Victim Compensation Fund, 53 DEPAUL L. REV. 527, 527 (2003) (noting that although the fund has generated "remarkable" controversy, the "general consensus [is] that . . . Special Master Kenneth Feinberg . . . has executed his duties, as much as he possibly can, with good judgment, commitment, and dedication to the victims whom the Fund aspires to compensate");
170. Vairo, Rhetoric, supra note 2, at 141-45 (noting positive reactions to the Dalkon Shield Claimants Trust).
171. See generally Michael G. Gordon, Debate Lingering on the Decision to Dissolve the Iraqi Military, N.Y. TIMES, Oct. 21, 2004, at A1 (discussing Bremer's decision to disband Iraqi military immediately upon the "catastrophic success" of the shock and awe campaign, which overruled U.S. military generals' plan to use Iraqi soldiers to help rebuild Iraq).
172. See, e.g., Vairo, Paradigm Lost, supra note 2, at 651-54, 656-58 ("Commonly discussed general complaints include a lack of willingness to compromise, a failure to reveal information concerning the trust's evaluation of claims, an insensitivity to the behavioral needs of claimants, and an overemphasis on administrative convenience.");
173. see also Carrie Menkel-Meadow, Taking the Mass out of Mass Torts: Reflections of a Dalkon Shield Arbitrator on Alternative Dispute Resolution, Judging, Neutrality, Gender, and Process, 31 LOY. L.A. L. REV. 513 (1998).
174. See Priest, supra note 138.
175. See Vairo, Rhetoric, supra note 2, For further discussion of the meaning of equality,
176. see William B. Rubenstein, The Concept of Equality in Civil Procedure, 23 CARDOZO L. REV. 1865, 1893-96 (2002) ("Outcome equality is important because it is evidence of a consistent, and hence legitimate, dispute resolution system. Equality is desired not to guard against caste-like practices, but rather to assist in the project of achieving acceptable adjudicative outcomes.").
177. Id.
178. Id.
179. Francis E. McGovern, The What and Why of Claims Resolution Facilities, 57 STAN. L. REV. 1361, 1375-79 (2005).
180. Id. at 1374.
181. WEINSTEIN, supra note 73, at 109-10 (noting that the cadre of special masters is too limited, which can lead to conflicts of interest because the same lawyers are involved in each case, and suggesting a code of ethics to deal with repeat player issues).
182. WILLGING ET AL., supra note 78.
183. See generally 9 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE ch. 53 (3d ed. 1997).
184. WILLGING ET AL., supra note 78.
185. Silberman, supra note 4, at 2154 (footnotes omitted).
186. See John C. Coffee, Jr., Class Wars: The Dilemma of the Mass Tort Class Action, 95 COLUM. L. REV. 1343, 1365 (1995);
187. Howard M. Erichson, Informal Aggregation: Procedural and Ethical Implications of Coordination Among Counsel in Related Lawsuits, 50 DUKE L.J. 381 (2000);
188. Ronald J. Gilson & Robert H. Mnookin, Disputing Through Agents: Cooperation and Conflict Between Lawyers in Litigation, 94 COLUM. L. REV. 509, 513 (1994) (modeling litigation as a prisoners' dilemma and noting the possible divergence of interest between lawyer and client when the lawyer is playing a repeat game while the client is a one-shot player).
189. In re Kensington Int'l, Ltd., 368 F.3d 289 (3d Cir. 2004).
190. Id. at 307 n.17.
191. ACTL MANUAL, supra note 74, at 83-84.
192. Schuck, supra note 56, at 952-53; see also Kensington Int'l, 368 F.3d at 289.
193. Silberman, supra note 4, at 2154; cf. Cheney v. United States Dist. Court, 124 S. Ct. 2576 (2004) (involving question of whether nongovernmental employees were de facto members of a governmental committee established by the President).
194. One of the most prominent of these mass tort masters, Francis McGovern, has written widely about his experiences. See, e.g., McGovern, supra note 93; Francis McGovern, The Alabama DDT Settlement Fund, LAW & CONTEMP. PROBS., Autumn 1990, at 61;
195. Francis McGovern, Toward a Functional Approach for Managing Complex Litigation, 53 U. CHI. L. REV. 440 (1986).
196. Yet he has been criticized. See Editorial, St. Francis of Asbestos, WALL ST. J., June 15, 2004, at A14;
197. see also Baltimore Defendants Concerned over Consolidation, MEALEY'S LITIG. REP.: ASBESTOS, May 4, 1990, LexisNexis Library, Mealey's Litigation Report: Asbestos File ("Defense sources indicated a displeasure over the appointment of a special master for such duties. . . . 'One wonders why you need a special master to organize a trial,' said a defense source. 'I thought Judge Levin was supposed to be the 'Asbestos Guru.'"). McGovern was appointed as a special master over the objection of some parties.
198. See Baltimore Judge Refuses to Recuse Himself, MEALEY'S LITIG. REP.: ASBESTOS, June 1, 1990, LexisNexis Library, Mealey's Litigation Report: Asbestos File ("The defendants had moved in opposition to the appointment of Francis McGovern as special master. Judge Levin denied the motion to withdraw McGovern from the position and denied defendants' motion to ask McGovern to recuse himself. . . . 'I feel very strongly that this is an unfair procedure,' said a defense source who believed that negotiations in the city's alternative dispute resolution (ADR) plan may have been irreparably damaged. 'When all the pressure is on one side, it doesn't give the plaintiffs any incentive to negotiate in good faith.'").
199. Ken Feinberg also has been attacked. See Motley Tells Feinberg to "Remember the Alamo," MEALEY'S LITIG. REP.: ASBESTOS, Jan. 4, 1991, LexisNexis Library, Mealey's Litigation Report: Asbestos File (reporting on plaintiff attorney Ron Motley's response to Settlement Master Kenneth Feinberg's quote in a Dec. 13, 1990 New York Times article with a "four-page history lesson on the Alamo"; Feinberg reportedly had said that the In Re Eagle Picher asbestos bankruptcy litigation settlement talks and the controversy surrounding them represented "the plaintiffs lawyer's Alamo." Motley responded by reminding Feinberg that the defenders of the Alamo ultimately triumphed because their cause was just, and that their courage and determination were an inspiration).
200. Kensington Int'l, 368 F.3d at 307.
201. See Sanjai Bhagat & Bernard Black, The Non-Correlation Between Board Independence and Long-Term Firm Performance, 27 IOWA J. CORP. L. 231 (2002);
202. Laura Linn, The Effectiveness of Outside Directors as a Corporate Governance Mechanism: Theories and Evidence, 90 NW. U. L. REV. 898, 961-62, 966 (1996).
203. BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 176-77 (1921) (observing, while referring to the process of judicial decisionmaking, that "out of the attrition of diverse minds there is beaten something which has a constancy and uniformity and average value greater than its component elements");
204. Harry T. Edwards, The Effects of Collegiality on Judicial Decision Making, 151 U. PA. L. REV. 1639 (2003) (recognizing that constructive decisionmaking is often best achieved "by allowing judges of differing perspectives and philosophies to communicate with, listen to, and ultimately influence one another").
205. See generally Cass R. Sunstein et al., Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation, 90 VA. L. REV. 301, 308 (2004) ("We also find evidence within the federal judiciary of 'group polarization,' by which like-minded people move toward a more extreme position in the same direction as their predeliberation views. If all-Republican panels are overwhelmingly likely to strike down campaign finance regulation, and if all-Democratic panels are overwhelmingly likely to uphold affirmative action programs, group polarization is likely to be a reason. Finally, we offer indirect evidence of a 'whistleblower effect': A single judge of another party, while likely to be affected by the fact that he is isolated, might also influence other judges on the panel, at least where the panel would otherwise fail to follow existing law.").
206. Lawrence B. Solum, Procedural Justice, 78 S. CAL. L. REV. 181, 275-77 (2004).
207. See, e.g., James J. Brudney, Foreseeing Greatness? Measurable Performance Criteria and the Selection of Supreme Court Justices, 32 FLA. ST. U. L. REV. (forthcoming 2005) (proposing consideration of additional criteria such as collegiality and career diversity);
208. Stephen Choi & Mitu Gulati, A Tournament of Judges?, 92 CAL. L. REV. 299 (2004) (proposing that a tournament of court of appeals judges should govern the selection of Supreme Court Justices, based on objective considerations of judicial merit such as the quantity and quality, based on relative citation rates, of their judicial opinions).
209. See CARDOZO, supra note 161, at 177.
210. Vairo, Paradigm Lost, supra note 2, at 637-38 (discussing DS Trust's first operating principle: "Treat all claimants fairly and equally, always focusing on the best interests of claimants collectively instead of on the interests of a particular claimant or group of claimants").
211. Id. at 656-58.
212. See In re A.H. Robins Co., 880 F.2d 769, 771-76 (4th Cir. 1989) (affirming the district court's broad power to supervise the trustees in matters such as appointment and fees of professionals, but noting that the district court did not have the power to interfere with the "day to day" operations of the DS Trust).
213. Id.
214. See Vairo, supra note 121.
215. Vairo, Paradigm Lost, supra note 2, at 634-36 & n.71.
216. Id. at 632-33. Ken Feinberg served during the first few years of the DS Trust's existence.
217. Id.
218. Id. at 634 (referring to Charles Goetz, a professor at the University of Virginia).
219. Id. at 641.
220. Id. at 641-42 (describing our best and final offer/no negotiation policy).
221. Id. at 646; see also Vairo, Rhetoric, supra note 2, at 146-47.
222. Vairo, Rhetoric, supra note 2, at 153-56.
223. Vairo, Paradigm Lost, supra note 2, at 660 (discussing initial resistance to DS Trust policies).
224. I did not apply for my position, but can speculate that my appointment came as a result of knowing persons involved in the case, including the judge. Some commentators have written that the DS trustees, and I in particular, were somehow beholden to the district court. See RICHARD B. SOBOL, BENDING THE LAW: THE STORY OF THE DALKON SHIELD BANKRUPTCY 339 (1991). Such criticism is inaccurate. As discussed above, the DS trustees acted independently, and acted in what they perceived to be the best interests of the claimants as a whole.
225. Since serving on the DS Trust, I have served as an expert in the breast implant litigation, see In re Dow Corning Corp., 287 B.R. 396, 412 (E.D. Mich. 2002), testifying at the confirmation hearing based on my experience in the A.H. Robins case. Although I have had the opportunity to participate again in the mass tort arena, I can hardly be characterized as a repeat player.