Consent versus closure

Cornell Law Review

Volumn 96, Issue 2, 2011, Pages 265-322

  Erichsonf, Howard M ^a   Zipurskyft, Benjamin C ^a  

^a FORDHAM LAW SCHOOL   (United States)

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[No Author keywords available]

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EID: 79952141342     PISSN: 00108847     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (381)

1. See Patrick E. Higginbotham, Stays of Execution: A Search for Predictability and Rationality, 20 TEX. TECH L. REV. 7, vii (1989).
2. See supra notes 23-24, 155 (discussing the Teague nonretroactivity doctrine and even stricter nonretroactivity rule of 28 U.S.C. §2254(d));
3. see also 28 U.S.C. §2244(b) (2006) (restricting second or successive habeas petitions);
4. id. §2244(d) (statute of limitations);
5. cf. Timberlake v. State, 859 N.E.2d 1209, 1213 (Ind. 2007) (granting a stay in light of a pending U.S. Supreme Court case and noting that the state court was not bound by § 2254(d) restrictions on relief that might have prevented a federal court from staying the execution).
6. See, e.g., Chambers v. Bowersox, 197 F.3d 308, 309 (8th Cir. 1999).
7. Many executions were stayed pending the Supreme Court's decision in Baze v. Rees, 553 U.S. 35, 41 (2008), which challenged a lethal injection protocol as unconstitutionally cruel and unusuai.
8. See Lethal Injection: Stays Granted, DEATH PENALTY INFO. CTR., http://www.deathpenaltyinfo.org/lethal-injection-stays-granted (last visited Oct. 14, 2010).
9. See, e.g., Kelly v. Quarterman, 296 F. App'x 381, 382 (5th Cir. 2008);
10. Rutherford v. Crosby, 438 F.3d 1087, 1089, 1095 (11th Cir. 2006), vacated sub nom.
11. Rutherford v. McDonough, 547 U.S. 1204 (2006);
12. In re Williams, 359 F.3d 811, 813-14 (6th Cir. 2004);
13. Hines v. Johnson, 83 F. App'x 592, 592-93 (5th Cir. 2003);
14. see also Higginbotham, supra note 193, at xii-xviii (citing older cases). To be sure, in some such cases the courts could justify denial of a stay on grounds independent of the issue on which the Supreme Court had granted certiorari, such that the Supreme Court's grant of certiorari would be irrelevant to the ultimate disposition of the case. But that is not the basis on which all of these cases proceed; the courts regard the existence of circuit law foreclosing the claim as a sufficient basis for denying the stay.
15. See Schwab v. Sec'y, Dep't of Corr., 507 F.3d 1297, 1298 (11th Cir. 2007) (per curiam) ("The district court's action in granting the stay [of execution] is contrary to the unequivocal law of this circuit that, because grants of certiorari do not themselves change the law, they must not be used by courts of this circuit as a basis for granting a stay of execution that would otherwise be denied.");
16. Berry v. Epps, 506 F.3d 402, 405 (5th Cir. 2007).
17. For instance, in Harbison v. Bell, 129 S. Ct. 1481, 1491 (2009), the Supreme Court rejected the view of the law that had supported the Fifth Circuit's denial of a stay in several cases, including Kelly, 296 F.
18. App'x at 382. Likewise, the Supreme Court in Nelson v. Campbell, 541 U.S. 637, 642-43 (2004), rejected the Sixth Circuit precedent that supported the denial of a stay in Williams, 359 F.3d at 813-14. To be sure, the condemned prisoners in such cases might not have ultimately avoided execution even under the new law, but we will never know for certain.
19. See Schwab, 507 F.3d at 1298.
20. Cf. Anthony G. Amsterdam, In Favorem Mortis: The Supreme Court and Capital Punishment, 14 HUM. RTS. 14, 51-52 (1987) (opining that the Supreme Court perversely believes delay is especially bad in capital cases).
21. See, e.g, Schwab, 507 F.3d at 1301; Bowden v. Kemp, 774 F.2d 1494, 1494 (11th Cir. 1985).
22. See, e.g, Watson v. Butler, 483 U.S. 1037, 1038 (1987) (Brennan, J., dissenting) (noting that four Justices voted to hold the case pending a forthcoming plenary decision but that five votes were necessary to grant a stay);
23. see also Streetman v. Lynaugh, 484 U.S. 992, 995 (1988) (similar circumstances). The Court has at times followed a custom according to which a fifth Justice will vote to issue a stay of execution when four have voted to grant certiorari, but that custom of preserving jurisdiction does not apply when four Justices (or three, which Brennan said in Watson is the required number) merely vote to hold a case.
24. See Straight v. Wainwright, 476 U.S. 1132, 1133 n.2 (1986) (Powell, J., concurring).
25. See, e.g., Intex Plastics Sales Co. v. United Nat'l Ins. Co., 23 F.3d 254, 256 (9th Cir. 1994);
26. In re Brooklyn Navy Yard Asbestos Litig., 971 F.2d 831, 850-51 (2d Cir. 1992). Given its current docket composition and certiorari practices, there are few instances in which the Supreme Court has reason to delay adjudication pending a state decision-but even it has done so before.
27. See, e.g., Am. Sur. Co. v. Baldwin, 287 U.S. 156, 163 n.3 (1932). Inferior state courts might also decide to delay adjudication in light of forthcoming decisions from superior state courts.
28. See, e.g., People v. Crotty, 914 N.E.2d 1269, 1272 n.1 (111. App. Ct. 2009);
29. G &J Pepsi-Cola Bottlers, Inc. v. Fletcher, 229 S.W.3d 915, 916 (Ky. Ct. App. 2007). As explained earlier, there may be factors that make abeyance in light of forthcoming state court decisions less common and less desirable than waiting for U.S. Supreme Court decisions, notably the risk of excessive delay.
30. Supra note 169 and accompanying text.
31. See generally 17A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 4241 (3d ed. 2007) (describing various abstention doctrines).
32. For cases that present themselves as abstention cases but also display aspects of abeyance because related questions were already pending before state high courts, see Rivera-Feliciano v. Acevedo-Vilá, 438 F.3d 50, 61-62 (1st Cir. 2006);
33. and Smell v. Cniy. of Orange, 447 F.3d 673, 681 (9th Cir. 2006).
34. See Arizonans for Official English v. Arizona, 520 U.S. 43, 75-79 (1997) (discussing disadvantages of abstention, including delay).
35. See Meredith v. Winter Haven, 320 U.S. 228, 234-37 (1943);
36. see also Jonathan Remy Nash, Examining the Power of Federal Courts to Certify Questions of State Law, 88 CORNELL L. REV. 1672, 1729-48 (2003) (discussing whether and how certification and abstention can be reconciled with Meredith);
37. cf. Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 730-31 (1996) (holding dismissal of damages action on abstention grounds improper but suggesting that a stay might have been proper in light of pending state litigation).
38. See generally 17A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 4248 (3d ed. 2007) (describing certification procedure).
39. See Bruce M. Selya, Certified Madness: Ask a Silly Question . . ., 29 SUFFOLK U. L. REV. 677, 690 (1995).
40. Compare Sargent v. Columbia Forest Prods., Inc., 75 F.3d 86, 88-91 (2d Cir. 1996) (recalling the mandate where the court of appeals had failed to hold the case in abeyance pending a state decision, proceeded to decide the case according to its best understanding of state law, and was proven wrong shordy thereafter),
41. with DeWeerth v. Baldinger, 38 F.3d 1266, 1269, 1273-74 (2d Cir. 1994) (leaving a prior decision in place where the federal court failed to certify a question to the state court and was proven wrong years later).
42. Cf. Lords Landing ViIl. Condo. Council v. Cont'l Ins. Co., 520 U.S. 893, 897 (1997) (GVR'ing in light of change in state law).
43. One obvious difference is that the courts of appeals, unlike the Supreme Court, are generally required to accept appeals. Supra notes 177-78 and accompanying text. But here, this usually important difference is less pronounced because the Court tends to act as if it has a duty to manage transitions by holding petitions and issuing GVRs rather than simply denying all petitions besides the one granted plenary review.
44. See Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982) ("The filing of a notice of appeal is an event of jurisdictional significance-it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.").
45. See generally 16A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE §3949.1 (4th ed. 2008) (discussing the rule and various elaborations and exceptions, especially those regarding postjudgment motions).
46. See, e.g., Marable v. Nitchman, 511 F.3d 924, 930 n.11 (9th Cir. 2007);
47. D.C. Fed'n of Civic Ass'ns v. Volpe, 520 F.2d 451, 453 (D.C. Cir. 1975);
48. Max M. v. Thompson, 585 F. Supp. 317, 324 (N.D. 111. 1984).
49. See FED. R. CIV. P. 59 (2008) (amended 2009);
50. see also FED. R. CIV. P. 50 (2008) (amended 2009) (setting a ten-day deadline for motion for judgment as a matter of law).
51. FED. R. APP. P. 4(a)(1).
52. Depending on the grounds of the motion, the period for filing is either one year or "within a reasonable time." FED. R. CIV. P. 60(C).
53. See, e.g, D.C. Fed'n of Civic Ass'ns, 520 F.2d at 453 (D.C. Cir. 1975);
54. Schildhaus v. Moe, 335 F.2d 529, 531 (2d Cir. 1964). Some courts appear to go further: any legal error-not just those that stem from intervening developments-may be corrected via Rule 60(b) if the motion is filed within the period for filing the notice of appeal.
55. See generally 12 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE-CIVIL §60.41 [4] (3d ed. 2010) (describing the circuits' varying approaches). That more generous view might be correct as well, although it is a closer call because allowing Rule 60(b) to be used to correct preexisting errors would (at least under pre-December 2009 rules) undermine the deadline in Rule 59.
56. Some courts, such as the First Circuit, take a firm stand against allowing Rule 60(b) to be used to correct errors of law. See Venegas-Hernandez v. Sonolux Records, 370 F.3d 183, 189 (1st Cir. 2004). It is possible that such courts would take a more accommodating view in the special circumstance of an error caused by an intervening change in law.
57. See FED. R. CIV. P. 59 advisory committee note.
58. see FED. R. APP. P. 4(a) (4).
59. See FED. R. APP. P. 4(a) (4) (A) (vi) (2008) (amended 2009). The clock was stopped only for motions filed within ten days of the judgment.
60. See, e.g, Millipore Corp. v. Travelers Indem. Co., 115 F.3d 21, 34, 36 (1st Cir. 1997);
61. Vicknair v. Formosa Plastics Corp., La., 98 F.3d 837, 839 (5th Cir. 1996).
62. See FED. R. APP. P. 12.1;
63. FED. R. CIV. P. 62.1. Many courts allowed such maneuvers even before the new rules.
64. See 16A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE §3949.1 (4th ed. 2008) (discussing prior "indicative-ruling" practices);
65. see also Catherine T. Struve, Power, Protocol, and Practicality: Communications from the District Court During an Appeal, 84 NOTRE DAME L. REV. 2053, 2096-2101 (2009) (discussing indicativeruling procedure and other modes of communication between the district court and court of appeals).
66. See FED. R. CIV. P. 16(b);
67. Landis v. N. Am. Co., 299 U.S. 248, 254-55 (1936).
68. Cf. Brzonkala v. Va. Polytechnic Inst. & State Univ., 169 F.3d 820, 909 (4th Cir. 1999) (en banc) (Motz, J., dissenting) (arguing that the majority's decision to remand rather than hold the claim in abeyance "wastes time and scarce judicial resources" and "creat[es] unnecessary extra work for the district court"), aff'd sub nom.
69. United States v. Morrison, 529 U.S. 598 (2000).
70. See Setdement Agreement Between Merck & Co., Inc. and the Counsel Listed on the Signature Pages Hereto (Nov. 9, 2007) [hereinafter Vioxx Setdement Agreement], available at www.merck.com/newsroom/vioxx/pdf/Setdement-Agreement. pdf.
71. E.g., Alex Berenson, Analysts See Merck Victory in Vioxx Deal, N.Y. TIMES, NOV. 10, 2007, at Al;
72. Carrie Johnson, Merck Agrees to Blanket Settlement on Vioxx, WASH. POST, NOV. 10, 2007, at Dl;
73. Heather Won Tesoriero et al., Merck's Tactics Largely Vindicated as It Reaches Big Vioxx Settlement, WALL ST. J., NOV. 10, 2007, at Al;
74. Wailin Wong, Settlement Frees Merck of Vioxx Suits, CHI. TRIB., NOV. 10, 2007.
75. BROWNGREER PLC, CLAIMS ADMINISTRATOR COURT REPORT NO. 13, at 2 (Dec. 19, 2008), available at www.browngreer.com/vioxxsetdement/images/pdfs/mdlreport-1219 08.pdf. By September 16, 2009, 48,507 claims had been submitted, including 30,480 claims for myocardial infarctions and 18,027 claims for ischemic strokes.
76. BROWNGREER PLC, CLAIMS ADMINISTRATOR COURT REPORT NO. 21, at 4 (Sept. 17, 2009), available at www.brown greer.com/vioxxsetdement/images/pdfs/mdlreport- 091709.pdf.
77. Alex Berenson, Merck Is Said to Agree to Pay $4.85 Billion for Vioxx Claims, N.Y. TIMES, Nov. 9, 2007, at Al.
78. See infra text accompanying notes 15-21.
79. See infra text accompanying notes 22-32.
80. See, e.g, In re Vioxx Prods. Liab. Litig., 574 F. Supp. 2d 606, 613 (E.D. La. 2008);
81. In re Guidant Corp. Implantable Defibrillators Prods. Liab. Litig., MDL No. 05-1708, 2008 WL 682174, at *8 (D. Minn. Mar. 7, 2008);
82. In re Zyprexa Prods. Liab. Litig., 433 F. Supp. 2d 268, 271 (E.D.N.Y. 2006).
83. See, e.g, Samuel Issacharoff, Private Claims, Aggregate Rights, 2008 SUP. CT. REV. 183, 214-20;
84. Samuel Issacharoff & Robert H. Klonoff, The Public Value of Settlement, 78 FORDHAM L. REV. 1177, 1182-90 (2009);
85. David Marcus, Some Realism About Mass Torts, 75 U. CHI. L. REV. 1949, 1970-73 (2008);
86. Francis E. McGovem, A Model State Mass Tort Settlement Statute, 80 TUL. L. REV. 1809, 1810-15 (2006);
87. Richard A Nagareda, Embedded Aggregation in Civil Litigation, 95 CORNELL L. REV. 1105, 1110-15 (2010);
88. Edward F. Sherman, The MDL Model for Resolving Complex Litigation If a Class Action Is Not Possible, 82 TUL. L. REV. 2205, 2213-16 (2008);
89. Charles Silver, Merging Roles: Mass Tort Lawyers as Agents and Trustees, 31 PEPP. L. REV. 301, 304-13 (2004);
90. Charles Silver & Geoffrey P. Miller, The Quasi-Class Action Method of Managing Multi-District Litigations: Problems and a Proposal, 63 VAND. L. REV. 107, 115-18 (2010).
91. RICHARD A. NAGAREDA, MASS TORTS IN A WORLD OF SETTLEMENT 219-21 (2007).
92. AM. LAW INST., PRINCIPLES OF THE LAW OF AGGREGATE LITIGATION (2010) [hereinafter PRINCIPLES].
93. See Byron G. Stier, Jackpot Justice: Verdict Variability and the Mass Tort Class Action, 80 TEMP. L. REV. 1013, 1056-66 (2007) (describing the usefulness of multiple individual cases and jury verdicts for achieving accurate claim valuation in mass tort settlements).
94. See, e.g., Alex Berenson, Plaintiffs Find Payday Elusive in Vioxx Suits, N.Y. TIMES, Aug. 21, 2007, at Al ("Promising to contest every case, Merck has spent more than $1 billion over the last three years in legal fees. It has refused, at least publicly, to consider even the possibility of an overall setdement to resolve all the lawsuits at once.");
95. Julie Fishman, Company Fends Ojf OxyContin Lawsuits, STAMFORD ADVOC, Feb. 9, 2002, at A3 (quoting Howard Udell, general counsel for Purdue Pharma, on the company's refusal to setde OxyContin cases: "They file their lawsuits in the hope that they'll get a quick setdement. If someone files a baseless claim against our company, however, they don't get a quick setdement. They get a vigorous defense at every turn.");
96. Alison Frankel, The Torch Is Dimming on Tort Cases, FULTON COUNTY DAILY REP., Jan. 10, 2007 (quoting plaintiffs' lawyer W. Mark Lanier "If Vioxx predated [fen-phen], you would see Merck more willing to settle instead of trying every case. Instead, they're following the tobacco model: Try every case, take no prisoners." (alteration in original)); Litigation Update, DRUG INDUSTRY DAILY, Dec. 8, 2003, at 1 ("[Purdue Pharma] said it has not settled or suffered an adverse judgment in any OxyContin case. Purdue still faces 325 pending lawsuits but has no intention of paying anything to settle any of them, company spokesman Tim Bannon told [Drug Industry Daily]." (citation omitted)).
97. See Howard M. Erichson, Mass Tort Litigation and Inquisitorial Justice, 87 GEO. L. J. 1983, 1995-2001 (1999).
98. See, e.g., Thomas v. Blue Cross & Blue Shield Ass'n, 594 F.3d 823, 832 (11th Cir. 2010) (class action against health insurance company); In re Ins. Brokerage Antitrust Litig., 579 F.3d 241, 264-70 (3d Qr. 2009) (class action against insurance brokers); In re SFBC Int'l Inc., 310 F. App'x 556, 558 (3d Cir. 2009) (class action for securities fraud).
99. 521 U.S. 591 (1997).
100. 527 U.S. 815 (1999).
101. Amchem, 521 U.S. at 621-22. is Id. at 622-28.
102. Id. at 627.
103. Ortiz, 527 U.S. at 824-28.
104. See id. at 856.
105. See In re Diet Drugs (Phentermine, Fenfluramine, Dexfenfluramine) Prods. Liab. Litig., Nos. 1203, 99-20593, 2000 WL 1222042, at *49 (E.D. Pa. Aug. 28, 2000).
106. See Lawrence T. Hoyle, Jr. & Edward W. Madeira, Jr., "The Philadelphia Story": Mass Torts in the City of Brotherly Love, 2 SEDONA CONF. J. 119, 146-50 (2001);
107. Richard A Nagareda, Autonomy, Peace, and Put Options in the Mass Tort Class Action, 115 HARV. L. REV. 747, 800-04 (2002).
108. See In re Diet Drugs, 2000 WL 1222042, at *45-50.
109. Id. at *45.
110. Id. at *49.
111. Id.
112. Id.
113. id. at *69-72.
114. In re Diet Drugs (Phentermine, Fenfluramine, Dexfenfluramine) Prods. Liab. Litig., 282 F.3d 220, 242 (3d Cir. 2002).
115. See Alison Frankel, Still Ticking, AM. LAW., Mar. 2005, at 92, 96.
116. See McGovern, supra note 8, at 1813-15.
117. See Howard Erichson, Public and Private Law Perspectives: Transcript of Professor Howard Erichson, 37 Sw. U. L. REV. 665, 668 (2008) (describing the arc from asbestos to fen-phen to Vioxx as a series of overreactions); Issacharoff, supra note 8, at 217 (describing the pressing circumstances that drove the unusual features of the Vioxx settlement).
118. See, e.g., Preliminary Draft of Proposed Amendments to the Federal Rules of Appellate, Civil, and Criminal Procedure, 167 F.R.D. 523, 554 (1996) (proposing to amend Rule 23 to create a new category for settlement class actions that would permit class certification where "the parties to a settlement request certification under subdivision (b) (3) for purposes of settlment, even though the requirements of subdivision (b)(3) might not be met for purposes of trial");
119. Ortiz v. Fibreboard Corp., 527 U.S. 815, 821 (1999) (attempting to resolve asbestos liability by a Rule 23(b)(1)(B) settlment class action);
120. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997) (attempting to resolve asbestos liability by a Rule 23(b)(3) settlment class action); PRINCIPLES, supra note 10, §3.06 (proposing that settlement class actions be certifiable even if they could not be certified for litigation);
121. JAY TIDMARSH, FED. JUDICIAL CTR., MASS TORT SETTLEMENT CLASS ACTIONS: FIVE CASE STUDIES (1998) (describing five large-scale attempts to use Rule 23 to achieve negotiated global resolutions of mass torts).
122. See Frank Donnelly, Oxycontin Maker Settles Suit for $75M, STATEN ISLAND ADVANCE, Jan. 27, 2007, at Al;
123. Jim Zebora, Purdue Settles 90% of Pending OxyContin Cases, STAMFORD ADVOC.Jan. 27, 2007.
124. See Barry Meier, Narcotic Maker Guilty of Deceit over Marketing, N.Y. TIMES, May 11, 2007, at Al.
125. See id.
126. See Jeff Swiatek, Judge Approves $700 Million Zyprexa Deal, INDIANAPOLIS STAR, Sept. 28, 2006.
127. See Joe Schneider & Margaret Cronin Fisk, Eli. Lilly Settles Zyprexa Suits with 18,000 Patients (Updatel2), BLOOMBERG (Jan. 4, 2007, 5:55 PM), http://www.bloomberg.com/ apps/news?pid=newsarchive&sid=aaePGELd3kx4.
128. See David Voreacos, J&J Paid $68 Million to Settle Birth-Control Cases (Update3), BLOOMBERG (Oct. 10, 2008, 4:24 PM), http://www.bloomberg.com/apps/news?pid=news archive&sid=a9] OdhmcZq9.g.
129. In sketching out the facts, we will rely principally on the recitation of the facts in McDarby v. Merck & Co., 949 A2d 223 (N.J. Super. Ct. App. Div. 2008). That appellate court, of course, was not reciting the facts as it found them but rather was reciting the "facts that could reasonably have been considered by the jury in support of its verdict." Id. at 229. Documents and journal publications amply demonstrate many of the primary facts that the court recites in its opinion, and the primary facts that the court describes as the basis of the jury determination are consistent with the facts as found by the REPORT OF THE HONORABLE JOHN S. MARTIN, JR. TO THE SPECIAL COMMITTEE OF THE BOARD OF DIRECTORS OF MERCK & CO., INC. CONCERNING THE CONDUCT OF SENIOR MANAGEMENT IN THE DEVELOPMENT AND MARKETING OF VIOXX (2006), available at www.merck.com/newsroom/vioxx/ martin-report.html. For another helpful summary,
130. see Margaret Gilhooley, Vioxx's History and the Need for Better Procedures and Better Testing, 37 SETON HALL L. REV. 941, 944-54 (2007) (providing the factual history of Vioxx testing and regulation).
131. FDA, Merck, and Vioxx: Putting Patient Safety First?: Hearing Before the S. Comm. on Fin., 108th Cong. 18 (2004) [hereinafter Hearing] (statement of Bruce M. Psaty, M.D., Professor, Medicine and Epidemiology, University of Washington, Cardiovascular Health Research Unit).
132. See McDarby, 949 A2d at 230-32 (noting that as early as 1998, Merck scientists began to collect data systematically on all cardiovascular events in all clinical trials for Vioxx).
133. Claire Bombardier et al., Comparison of Upper Gastrointestinal Toxicity of Rofecoxib and Naproxen in Patients with Rheumatoid Arthritis, 343 NEW ENG. J. MED. 1520 (2000).
134. See McDarby, 949 A2d at 239-45 (noting that Merck fought to have the VIGOR results posted in the label's "precautions" section rather than the more prominent "warnings" section and instructed sales representatives to "dodge" obstacles regarding Vioxx's medical risks).
135. See Gilhooley, supra note 41, at 950 (explaining that Merck removed Vioxx from the market after the APPROVe study because it believed that the study definitively proved that Vioxx posed a higher risk of cardiovascular events).
136. See, e.g., Peter Juni et al., Risk of Cardiovascular Events and Rofecoxib: Cumulative Metaanalysis, 364 LANCET 2021 (2004) (exploring the availability of evidence on the adverse effects of rofecoxib prior to September 2004).
137. Hearing, supra note 42, at 14 (statement of David J. Graham, M.D., M.P.H., Associate Director for Science, Office of Drug Safety, Food and Drug Administration) (estimating that between 88,000 and 139,000 excess cases of heart attack or sudden cardiac death were caused by Vioxx, and that 30%-40% of these patients probably the d).
138. For example, Juni et al., supra note 47, at 2021, indicate a relative risk of 2.3 for some groups. Tort law sometimes deems a relative risk of greater than 2.0 essential. See In re Hanford Nuclear Reservation Litig., 292 F.3d 1124, 1137 (9th Cir. 2002). But see Response to Article by Juni et al. Published in The Lancet on Nov. 5, MERCK, www.merckfrosst.ca/assets/ en/pdf/products/ vioxx-wididrawal/lancet.pdf (last visited Nov. 13, 2010).
139. in re Vioxx Prods. Liab. Litig., 239 F.R.D. 450 (E.D. La. 2006).
140. See In re Vioxx Litig., 2006 WL 2950622, at *1 (N.J. Super. Ct. Oct. 2, 2006).
141. See In re Vioxx Consol. Class Action, No. JCCP 4247, 2009 WL 1283129 (Cal. Super. Ct. Apr. 30, 2009).
142. See Ledbetter v. Merck & Co., Nos. 2005-59499, 2005-58543, 2007 WL 1181991 (Dist. Ct. Tex. Apr. 19, 2007).
143. See Alexandra D. Lahav, Rediscovering the Social Value of Jurisdictional Redundancy, 82 TUL. L. REV. 2369, 2394 nn.106-07 (2008) (collecting Vioxx trial outcomes);
144. Mistrial Granted in Vioxx Case, L.A TIMES, Jan. 19, 2007 (noting a mistrial of the consolidated case).
145. See Lahav, supra note 54, at 2394 n.106.
146. See id.
147. See id.
148. See id.
149. See id.
150. See In re Vioxx Prods. Liab. Litig., 522 F. Supp. 2d 799, 801-02 (E.D. La. 2007).
151. See Wyeth v. Levine, 552 U.S. 1161 (2008) (granting certiorari on the issue of preemption).
152. See Brief for the United States as Amicus Curiae Supporting Petitioner, Wyeth v. Levine, 129 S. Ct. 1187 (2009) (No. 06-1249), 2008 WL 2308908.
153. See Wyeth, 129 S. Ct. at 1204.
154. See, e.g., Ed Silverman, Mark Lanier Defends the Vioxx Settlement, PHARMALOT (Jan. 7, 2008, 7:05 PM), www.pharmalot.com/2008/01/mark-lanier- defends-the-vioxx-setdement.
155. Merck, the Plaintiffs' Steering Committee, and the Claims Administrator posted the settlement agreement. See Vioxx Settlement Agreement, supra note 1; Vioxx Settlement Documents, OFFICIAL Vioxx SETTLEMENT, www. officialvioxxsetdement.com/documents (last visited Nov. 13, 2010).
156. The Plaintiffs' Steering Committee placed a Vioxx points "calculator" on the Internet to help claimants estimate their setdement payment. See Vioxx Settlement Calculator, OFFICIAL VIOXX SETTLEMENT, www.officialvioxxsetdement.com/calculator (last visited Nov. 13, 2010).
157. Vioxx Setdement Agreement, supra note 1, §1.2.8.1.
158. Id. §1.2.8.2.
159. Id. §1.2.7; see also id. Recital G ("A key objective of the Program is that, with respect to any counsel with an Interest in the claims of any Enrolled Program Claimant, all other Eligible Claimants in which such counsel has an Interest shall be enrolled in the Program.").
160. See, e.g., Memorandum in Support of Certain Plaintiffs' and Their Counsels' Motion for Declaratory Judgment that Certain Provisions of the Settlement Agreement are Unenforceable at 1, In re Vioxx Prods. Liab. Litig., 574 F. Supp. 2d 606 (E.D. La. 2008) (MDL No. 1657), 2008 WL 83836, at *1; see also Alex Berenson, Lawyers Seek to Alter Settlement over Vioxx, N.Y. TIMES, Dec. 21, 2007, at C4.
161. See Amendment to Settlement Agreement §1.2.2 (Jan. 17, 2008), available at www. merck.com/newsroom/vioxx/pdf/Amendment-to-Setdement-Agreement. pdf.
162. See id. Recital C;
163. see also Heather Won Tesoriero, Merck's Prospects Brighten for Vioxx Settlement, WALL ST. J., Jan. 19, 2008, at A3 ("Lawyers for both sides said this is a point of clarification but not a substantive change.").
164. We are aware of one state ethics opinion addressing the Vioxx settlment. It concluded that the mandatory-recommendation and mandatory-withdrawal provisions violated the Connecticut Rules of Professional Conduct. See Conn. Bar Ass'n, Informal Op. 08-01 (2008) (discussing obligations of plaintiffs' counsel under a particular aggregate settlement agreement).
165. See, e.g, Daniel Costello, Vioxx Deal May Cause Pain, L.A TIMES, NOV. 15, 2007, at Cl;
166. Nathan Koppel, Vioxx Plaintiffs' Choice: Settle or Lose Their Lawyer, WALL ST. J., NOV. 16, 2007, at Bl;
167. Adam Liptak, In Vioxx Settlement, Testing a Legal Ideal: A Lawyer's Loyalty, N.Y. TIMES, Jan. 22, 2008, at A12;
168. Howard M. Erichson, The Vioxx Settlement, MASS TORT LITIG. BLOG (NOV. 10, 2007) [hereinafter Erichson, The Vioxx Settlement], http://lawprofessors. typepad. com/mass-tort-litigation/2007/ll/the-vioxx-settl.html;
169. Anthony Sebok & Benjamin Zipursky, Getting with the Program: The Vioxx Settlement, FINDLAW (Nov. 20, 2007), http:// writ.lp.findlaw.com/sebok/ 20071120.html;
170. Ed Silverman, Vioxx Deal and Legal Ethics: Are They Compatible?, PHARMALOT (NOV. 16, 2007, 8:03 AM), http://www.pharmalot.com/2007/ 11/vioxx-deal-and-legal-ethics-debate-continues;
171. see also Howard M. Erichson, The Trouble with All-or-Nothing Settlements, 58 KAN. L. REV. 979, 1000-04 (2010) [hereinafter Erichson, The Trouble].
172. See Howard M. Erichson, Beyond the Class Action: Lawyer Loyalty and Client Autonomy in Non-Class Collective Representation, 2003 U. CHI. LEGAL F. 519, 543-50.
173. See MODEL RULES OF PROF'L CONDUCT R. 1.7(b) (2010) (permitting informed consent to conflicts of interest if a lawyer reasonably concludes that the lawyer can give each client competent and diligent representation).
174. See id. at R. 1.8(g):
175. A lawyer who represents two or more clients shall not participate in making an aggregate settlment of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client gives informed consent, in a writing signed by the client. The lawyer's disclosure shall include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlment.
176. 78 Id. at R. 1.2(a): Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.
177. See also Moores v. Greenberg, 834 F.2d 1105, 1108 (1st Cir. 1987) (permitting malpractice claim where lawyer, who considered settlment offer inadequate, failed to transmit settlment offer to client); In re Harshey, 740 N.E.2d 851, 853 (Ind. 2001) (disciplining lawyer for accepting settlment offer contrary to client's instructions); In re Panel File No. 99-5, 607 N.W.2d 429, 431-32 (Minn. 2000) (disciplining lawyer for failure to transmit client's settlment offer to opposing party).
178. See Parker v. Anderson, 667 F.2d 1204, 1211 (5th Cir. 1982).
179. In re Vioxx Prods. Liab. Litig., 239 F.R.D. 450, 463 (E.D. La. 2006).
180. MODEL RULES OF PROF'L CONDUCT R. 1.4(b) ("A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.").
181. Id. at R. 2.1 ("In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.").
182. Id. at R. 1.7(a):
183. Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if... (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
184. See id. at R. 1.2(a).
185. See id. at R. 5.6(b).
186. See id. at R. 1.16.
187. Id. at R. 5.6(b);
188. see also MODEL CODE OF PROF'L RESPONSIBILITY DR 2-108(B) (1980) ("In connection with the settlement of a controversy or suit, a lawyer shall not enter into an agreement that restricts his right to practice law."); RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS §13(2) (2000) ("In settling a client claim, a lawyer may not offer or enter into an agreement that restricts the right of the lawyer to practice law, including the right to represent or take particular action on behalf of other clients.").
189. ABA Comm. on Ethics & Prof'l Responsibility, Formal Op. 93-371 (1993).
190. Id.
191. Adams v. BellSoudi Telecomms., Inc., No. 96-2473, 2001 WL 34032759, at *1 (S.D. Fla. Jan. 29, 2001).
192. See, e. g., Feldman v. Minars, 658 N.Y.S.2d 614, 617 (App. Div. 1997);
193. Stephen Gillers & Richard W. Painter, Free the Lawyers: A Proposal to Permit No-Sue Promises in Settlement Agreements, 18 GEO. J. LEGAL ETHICS 291, 294 (2005);
194. Stephen Gillers, A Rule Without a Reason: Let the Market, Not the Bar, Regulate Settlements That Restrict Practice, A. B. A. J., Oct. 1993, at 118.
195. Vioxx Settlement Agreement, supra note 1, §§1.2.8.1, 1.2.8.2. Although Rule 5.6(b) usually arises in the context of a settlment provision that restricts a lawyer's ability to take on future clients with claims against the defendant, there is no doubt about its applicability to restrictions on representing current nonsettling clients. SeeAss'n of the Bar of the City of N.Y., Formal Op. 1999-03 (1999) ("We believe that this rule is unambiguous in its application to agreements not to represent present or future clients in litigation against a settling defendant."); Ethics Comm. of the Colo. Bar Ass'n, Formal Op. 92 (1993) ("Practice restrictions of the kind prohibited in Rule 5.6(b) are clearly overbroad and antithetical to a lawyer's ability to practice. Where the lawyer is representing contemporaneously settling and non-settling claimants, such restrictions could create an irreconcilable conflict of interest."); State Bar of Mich., Op. CI-1165 (1986) (stating that a lawyer behaves unethically when she proposes or accepts settlement in which she agrees to withdraw from representing other clients with pending cases against same defendant).
196. MODEL RULES OF PROF'L CONDUCT R. 1.16(a)(1) (2010).
197. See N.C. State Bar, Op. 251 (1997) (discussing that if a lawyer represents four personal-injury claimants and the insurance coverage cannot compensate all four clients fully, the lawyer may have to withdraw from representing all of the clients if they do not agree on a settlement: "The lawyer must withdraw from the representation of all of the claimants if the lawyer is placed in the role of advocate for one or more of the claimants against the other claimants. The lawyer must also witkdraw from the representation if one or more of the claimants do not agree to accept the settlement offer. If the lawyer must withdraw, the lawyer may continue to represent one or more of the claimants only with the consent of the claimants whose cases the lawyer relinquishes."); Bd. of Prof 1 Responsibility of the Supreme Court of Tenn., Formal Op. 95-F-136 (1995) (stating that when an attorney represents both a personal-injury claimant and the client's health insurer with a subrogation interest, "[a]t the time of the initial contact by the health insurance provider, the attorney should advise the health insurance provider both orally and in writing that if both clients do not agree on the proposed settlement, then the lawyer may not continue his multiple employment and must withdraw from representing the health insurer."); RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS §128 cmL d(i), illus. 2 (2000) (stating that in a two-client aggregate settlement with insufficient coverage for both claimants, "[i]f one client wishes to accept and the other wishes to reject the proposed settlement, Lawyer may continue to represent both A and B only after a renewal of informed consent by each.").
198. See N.C. State Bar, Op. 251.
199. See, e.g., Picker Int'l, Inc. v. Varian Assoes., Inc., 869 F.2d 578, 584 (Fed. Cir. 1989) (stating that a law firm may not "force [plaintiff] to accept a second-class level of clienthood ... in order that [the law firm] may continue to represent a more preferred client in all pending cases"); ValuePart, Inc. v. Clements, No. 06 C 2709, 2006 WL 2252541, at *2 (N.D. 111. Aug. 2, 2006) ("When a lawyer or law firm suddenly finds itself in a situation of simultaneously representing clients who either are presently adverse or are on the verge of becoming adverse, it may not simply to [sic] drop one client like a hot potato in order to treat it as though it were a former client for the purpose of resolving a conflict of interest dispute.");
200. MODEL RULES OF PROF'L CONDUCT R. 1.16(b)(1).
201. Id. at R. 1.16(b).
202. DeFlumer v. LeSchack & Grodensky P.C., No. 99-CV-1650, 2000 WL 654608 (N.D.N.Y. May 19, 2000).
203. Id. at *1 (citing Marrero v. Christiano, 575 F. Supp. 837, 839 (S.D.N.Y. 1983);
204. Borup v. Nat'l Airlines, Inc., 159 F. Supp. 808, 810 (S.D.N.Y. 1958);
205. In re Busby, 616 N.Y.S.2d 755, 756 (App. Div. 1994)).
206. Busby, 616 N.Y.S.2d at 756. At the time of the DeFlumer and Busby cases,
207. See N.Y. RULES OF PROF'L CONDUCT R. 1.16 (2009).
208. Busby, 616 N.Y.S.2d at 756;
209. see Sec. & Exch. Comm'n v. Intracom Corp., No. CV 02-4367, 2007 WL 1593208, at *2 (E.D.N.Y. June 1, 2007) ("Certainly, a refusal to accept a settlement, even though favored by an attorney, is not just cause for withdrawal by an attorney." (emphases omitted)
210. (quoting Marrero, 575 F. Supp. at 839));
211. Welch v. Niagara Falls Gazette, No. 98-CV-0685E(M), 2000 WL 1737947, at *2 (W.D.N.Y. Nov. 17, 2000) ("[A] client's refusal to accept a settlement offer is not good cause for an attorney to withdraw. The client decides whether or not to accept a settlement offer, and this decision is binding on [the] attorney even if it is against the attorney's advice.");
212. ABA/BNA LAWYERS' MANUAL ON PROFESSIONAL CONDUCT 31:1106-07 (2004)
213. (citing Estate of Falco v. Decker, 233 Cal. Rptr. 807 (Ct. App. 1987);
214. Tsavaris v. Tsavaris, 244 So. 2d 450 (Fla. Dist. Ct. App. 1971);
215. Michael D. Tully Co. v. Dollney, 537 N.E.2d 242 (Ohio Ct. App. 1987)).
216. 535 F.3d 962 (9th Cir. 2008).
217. Id. at 965.
218. Id. at 967-68.
219. Id. at 971
220. (citing Compton v. Kittleson, 171 P.3d 172, 173 (Alaska 2007);
221. Jones v. Feiger, Collison & Killmer, 903 P.2d 27, 34 (Colo. App. 1995), rev'd on other grounds, 926 P.2d 1244 (Colo. 1996);
222. Conn. Bar Ass'n, Informal Op. 99-18 (1999);
223. Conn. Bar Ass'n, Informal Op. 95-24 (1995);
224. State Bar of Mich., Op. RI-132 (1992)).
225. Nehad, 535 F.3d at 971
226. (citing Augustson v. Linea Aerea Nacional-Chile SA, 76 F.3d 658, 663 (5th Cir. 1996);
227. Ambrose v. Detroit Edison Co., 237 N.W.2d 520, 523-24 (Mich. Ct. App. 1975)).
228. Id.
229. Quantum meruit cases reach the same conclusion.
230. See, e.g., Estate of Falco v. Decker, 233 CaI. Rptr. 807, 815-16 (Ct. App. 1987) ("A client's right to reject settlement is absolute. ... A client's exercise of this right cannot constitute cause for the purpose of awarding attorneys' fees.");
231. May v. Seibert, 264 S.E.2d 643, 646 (W. Va. 1980) ("No cases are cited and we have found none, that state that refusal by a client to accept a 'reasonable' settlement is good cause for withdrawal.").
232. Under Rule 1.2(c), a lawyer "may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent." MODEL RULES OF PROF'L CONDUCT R. 1.2(c) (2010). We doubt whether, under the circumstances of the Vioxx litigation, a lawyer could properly limit the scope of representation so that clients understood that the lawyer represented them solely for purposes of a possible settlement. Without the leverage of adjudication, a lawyer could not adequately pursue the interests of tort claimants. In any event, such limited representation is not the scenario that the actual Vioxx case presents.
233. Id. at R. 1.16(b)(7).
234. Vioxx Settlement Agreement, supra note 1, § 1.2.8.
235. Id. § 1.2.8.2.
236. Amendment to Settlement Agreement, supra note 71, § 1.2.2.
237. Vioxx Settlement Agreement, supra note 1, § 8.1.2 ("Except as specifically provided in this Agreement, any dispute that arises ... shall be submitted to the Chief Administrator who shall sit as a binding arbitration panel and whose decision shall be final, binding and Non-Appealable.")
238. See id. § 6.1.1.
239. See Erichson, The Vioxx Settlement, supra note 74 (noting that settlements clear away a significant number of "docket-clogging" cases and can also reflect personal victories and professional accomplishments for judges);
240. Sebok & Zipursky, supra note 74 (commenting that judges often regard settlements as accomplishments that circumvent the arduous and time-consuming task of trying individual plaintiffs in mass litigation cases).
241. See PRINCIPLES, supra note 10, § 1.02(a)-(b) (defining "aggregate lawsuit" and "administrative aggregation" as types of aggregate proceedings that include both class and nonclass actions);
242. see also Erichson, supra note 75, at 530 (describing the functional similarity between class actions and nonclass litigation in which "numerous plaintiffs depend upon the work of counsel with whom they have no meaningful individual lawyer-client relationship, over whom they have no meaningful control, and whose loyalty is directed primarily to the interests of the group as a whole").
243. See PRINCIPLES, supra note 10, § 1.02(c) (defining "private aggregation" as a type of aggregate proceeding);
244. see also Howard M. Erichson, Informal Aggregation: Procedural and Ethical Implications of Coordination Among Counsel in Related Lawsuits, 50 DUKE L.J. 381, 417-48 (2000) (exploring how lawyers handle related claims on a coordinated basis even in the absence of formal judicial aggregation).
245. See PRINCIPLES, supra note 10, § 3.01 cmt. a. For an article in which two ALI Reporters note that both class and nonclass actions are resolved far more often by settlement than by trial,
246. see Issacharoff & Klonoff, supra note 8, at 1200-01.
247. See PRINCIPLES, supra note 10, § 3.15-. 18.
248. Discussion of Principles of the Law of Aggregate Litigation, 86 A.L.I. PROC. 229 (2009) [hereinafter 2009 Discussion of Principles of the Law of Aggregate Litigation] (remarks of Professor Samuel Issacharoff) ("My personal view is that this is probably the single greatest contribution of our project: to take this area on directly, something that has not been done before.");
249. see also Discussion of Principles of the Law of Aggregate Litigation, 85 AL.I. PROC. 27 (2008) [hereinafter 2008 Discussion of Principles of the Law of Aggregate Litigation] (remarks of Professor Samuel Issacharoff) ("Let me say why we think that this is perhaps as single a contribution as the Institute will make in this area if this is approved.").
250. See 2008 Discussion of Principles of the Law of Aggregate Litigation, supra note 122 (remarks of Professor Samuel Issacharoff) (commenting that the advance-consent approach "would have avoided many of the ethical difficulties in the Vioxx case");
251. id. (remarks of Professor Richard Nagareda) (noting the mandatory-withdrawal provision of the Vioxx setdement and commenting that "[w]e believe that instead of putting that kind of pressure on the lawyer-client relationship, we should invigorate disclosure and contract in advance").
252. See MODEL RULES OF PROF'L CONDUCT R. 1.8(g) (2010).
253. See PRINCIPLES, supra note 10, §3.16. Because the aggregate settlement rule is, at bottom, a rule about informed consent to conflicts of interest, the Principles sensibly define aggregate settlement in terms of interdependence. Interdependence, in turn, is defined broadly in terms of features that commonly appear in group settlements-collective allocation or collective conditionality.
254. Id. § 3.16 cmts. a-c; see also
255. Howard M. Erichson, A Typology of Aggregate Settlements, 80 NOTRE DAME L. REV. 1769, 1784-95 (2005) (proposing that aggregate settlements be defined in terms of collective allocation and collective conditionality).
256. PRINCIPLES, supra note 10, §3.17(a).
257. Id.
258. See Lynn A. Baker & Charles Silver, The Aggregate Settlement Rule and Ideals of Client Service, 41 S. TEX. L. REV. 227, 228-40 (1999);
259. Charles Silver & Lynn Baker, I Cut, You Choose: The Role of Plaintiffs' Counsel in Allocating Settlement Proceeds, 84 VA. L. REV. 1465, 1500-06 (1998);
260. Charles Silver & Lynn A. Baker, Mass Lawsuits and the Aggregate Settlement Rule, 32 WAKE FOREST L. REV. 733, 736 (1997) [hereinafter Silver & Baker, Mass Lawsuits].
261. PRINCIPLES, supra note 10, § 3.17(b)-(f) (proposing that claimants be allowed to enter into an agreement to be bound by an aggregate settlement proposal and listing the specific requirements for such an agreement).
262. For a similar proposal to permit binding nonclass aggregate settlements based on supermajority vote,
263. see Katherine Dirks, Note, Ethical Rules of Conduct in the Settlement of Mass Torts: A Proposal to Revise Rule 1.8(g), 83 N.Y.U. L. REV. 501, 524-30 (2008).
264. See Nancy J. Moore, The American Law Institute's Draft Proposal to Bypass the Aggregate Settlement Rule: Do Mass Tort Clients Need (or Want) Group Decision Making?, 57 DEPAUL L. REV. 395, 402-16 (2008) (critiquing the advance-consent proposal in an earlier draft of the Principles).
265. See Submission of Motion to Delete Sections 3.17(b) Through 3.19 of Principles of the Law of Aggregate Litigation Tentative Draft No. 1 (May 13, 2008) (available at www.ali. org/doc/Motion-AggLit-Stewart.pdf) (arguing that Sections 3.17(b)-(c), 3.18, and 3.19 are "unwise, unwarranted and/or unworkable").
266. See 2008 Discussion of Principles of the Law of Aggregate Litigation, supra note 122 (remarks of Director Lance Liebman and Mr. Larry S. Stewart).
267. MODEL RULES OF PROF'L CONDUCT R. 1.8(g) (2010).
268. PRINCIPLES, supra note 10, §3.17(a) ("A lawyer or group of lawyers who represent two or more claimants on a non-class basis may settle the claims of those claimants on an aggregate basis provided that each claimant gives informed consent in writing.").
269. Id. §3.17(b).
270. Id. §3.17(b)(1) ("The power to approve a settlement offer must at all times rest with the claimants collectively and may under no circumstances be assigned to claimants' counsel. Claimants may exercise their collective decisionmaking power to approve a settlement through the selection of an independent agent other than counsel.").
271. Id. § 3.17(b)(2) ("The agreement among the claimants may occur at the time the lawyer-client relationship is formed or thereafter, but only if all participating claimants give informed consent.").
272. See FED. R. Civ. P. 23(e)(2) (permitting settlement of a class action only upon a judicial finding that the settlement is "fair, reasonable, and adequate").
273. PRINCIPLES, supra note 10, § 3.17(e).
274. Id. § 3.18.
275. See Hayes v. Eagle-Picher Indus., Inc., 513 F.2d 892, 894-95 (10th Cir. 1975);
276. Knisley v. City of Jacksonville, 497 N.E.2d 883, 887-88 (Ill. App. Ct. 1986);
277. In re Hoffman, 883 So. 2d 425, 433-34 (La. 2004);
278. The Tax Auth., Inc. v. Jackson Hewitt, Inc., 898 A.2d 512, 522 (N.J. 2006);
279. ABA Comm. on Ethics & Prof 1 Responsibility, Formal Op. 06-438 (2006);
280. Ass'n of the Bar of the City of N.Y., Formal Op. 2009-6 (2009);
281. see also SECTION OF LITIG., AM. BAR ASS'N, ETHICAL GUIDELINES FOR SETTLEMENT NEGOTIATIONS § 3.2.3 (2002);
282. Erichson, supra note 125, at 1809;
283. Nancy J. Moore, The Case Against Changing the Aggregate Settlement Rule in Mass Tort Lawsuits, 41 S. TEX. L. REV. 149, 165 (1999).
284. MODEL RULES OF PROF'L CONDUCT R. 1.8(g) (2010).
285. 513 F.2d 892 (10th Cir. 1975).
286. Id. at 894.
287. See Knisley, 497 N.E.2d at 887-88;
288. Hoffman, 883 So. 2d at 433-34.
289. 898 A.2d 512 (N.J. 2006).
290. Id. at 515.
291. Id.
292. Id. at 516-17.
293. Id. at 522-23.
294. Id. at 523.
295. ABA Comm. on Ethics & Prof'l Responsibility, Formal Op. 06-438 (2006).
296. Ass'n of the Bar of the City of N.Y, Formal Op. 2009-6 (2009).
297. Id.
298. Id.
299. Id.
300. PRINCIPLES, supra note 10, §3.17 reporters' notes (Effect on Current Law) ("Subsections (b)-(e) depart from the existing aggregate-settlement rule and would require changes to the rules of professional responsibility in all jurisdictions.");
301. see also id. § 3.18 reporters' notes (Effect on Current Law) (proposing language for a new rule effectuating the proposal).
302. See id. § 3.17 cmt. b.
303. For example, the final proposal omits a troubling judicial-bypass feature that would have permitted plaintiffs' counsel to seek judicial approval to bind clients to a settlement even if those clients had not given advance consent.
304. See PRINCIPLES OF THE LAW OF AGGREGATE LITIGATION § 3.19, at 310-11 (Discussion Draft No. 2, 2007);
305. see also Moore, supra note 131, at 399-401 (describing and critiquing the judicial-bypass proposal);
306. 2009 Discussion of Principles of the Law of Aggregate Litigation, supra note 122 (remarks of Dean Robert H. Klonoff) (explaining the decision to scrap the bypass provision). Moreover, the final proposal reinstates a provision for limited judicial review to permit claimants to challenge unfair settlements.
307. See PRINCIPLES, supra note 10, § 3.18;
308. see also 2009 Discussion of Principles of the Law of Aggregate Litigation, supra note 122 (remarks of Dean Robert H. Klonoff) (explaining the decision to permit claimants to challenge settlements for substantive unfairness). To reduce the adhesion problem, the final proposal adds a requirement that lawyers offer traditional representation as an alternative to advance-consent representation.
309. See PRINCIPLES, supra note 10, § 3.17(b)(4);
310. see also 2009 Discussion of Principles of the Law of Aggregate Litigation, supra note 122 (remarks of Dean Robert H. Klonoff) (explaining the decision to require the alternative of traditional representation "in response to concerns that essentially the aggregate-settlement rule would simply become a nullity"). To address assorted other concerns, the final proposal offers a list of factors relevant to the enforceability of advance consent, including the sophistication of the claimants and whether a special master reviewed the settlement terms.
311. See PRINCIPLES, supra note 10, § 3.17(d). All of these revisions make the proposal more palatable to those who, like us, are skeptical of moves that empower lawyers to impose settlements on their clients. These improvements do not, however, eliminate the two most fundamental problems with the proposal: the problem of inauthentic consent and the problem of nonconsentable conflicts.
312. See supra text accompanying notes 41-117.
313. PRINCIPLES, supra note 10 § 3.17(b) (1);
314. see also Kerrie M. Brophy, Consent Waivers in Non-Class Aggregate Settlements: Respecting Risk Preference in a Transactional Adjudication Model, 22 GEO. J. LEGAL ETHICS 677, 682 (2009) (accepting the ALI's assertion that its proposal, by allowing claimants to vote on settlements, preserves claimants' power over the settlement rather than handing that power to attorneys).
315. Samuel Issacharoff, Reporter's Memorandum, in PRINCIPLES OF THE LAW OF AGGREGATE LITIGATION xiii, xiv (Preliminary Draft No. 5, 2008).
316. Id.: One concept that has been suggested and that is attractive to us is to authorize the creation of an entity to which claims could be assigned and that would have the authority to approve a settlement. Such an approach would create an intermediary entity that would serve to protect private interests without overly concentrating authority in the hands of plaintiffs' counsel.
317. Samuel Issacharoff, Reporter's Memorandum, in PRINCIPLES OF THE LAW OF AGGREGATE LITIGATION xiii, xiv (Council Draft No. 2, 2008).
318. Id. at xv.
319. See Moore, supra note 131, at 419-20.
320. Client sophistication figures prominently in analysis of consent to conflicts of interest.
321. See, e.g, Ass'n of the Bar of the City of N.Y., Formal Op. 2001-2 (2001) ("To be sure, sophisticated corporate and institutional clients can consent to conflicts which might be non-consentable in cases involving unsophisticated lay clients who are not represented by independent counsel in connection with the consent.").
322. PRINCIPLES, supra note 10, § 3.17(d).
323. Id. § 3.17 cmt. b ("Waivers of important rights are valid in a variety of areas, including the most cherished of constitutional rights. Subsection (b) rejects the view that individual decisionmaking over the settlement of a claim is so critical that it cannot be subject to a contractual waiver in favor of decisionmaking governed by substantial-majority vote.");
324. see also id. § 3.17 reporters' notes (naming fundamental rights that claimants can waive).
325. Responding to the argument that clients should be permitted to waive their right to reject a settlement because other important rights may be waived, Nancy Moore points to numerous ways in which the law governing lawyers appropriately refuses to honor client preferences. Moore, supra note 131, at 416-18.
326. See generally Todd D. Rakoff, Contracts of Adhesion: An Essay in Reconstruction, 96 HARV. L. REV. 1173, 1222-38 (1983) (explaining that the enforceability of contracts of adhesion hinges on the allocation of power between commercial organizations and individuals and that enforcing boilerplate terms infringes on the freedom of the adhering party).
327. PRINCIPLES, supra note 10, § 3.17(b)(4).
328. See MODEL RULES OF PROF'L CONDUCT R. 1.7 cmt. 14 (2010) ("Ordinarily, clients may consent to representation notwithstanding a conflict. However,... some conflicts are nonconsentable, meaning that the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client's consent.").
329. Id. at R. 1.7(b)(1).
330. Id. at R. 1.7(b)(3).
331. See Erichson, supra note 125, at 1795-96.
332. Cf. ABA Comm. on Ethics & Prof'l Responsibility, Formal Op. 05436 (2005);
333. Richard W. Painter, Advance Waiver of Conflicts, 13 GEO. J. LEGAL ETHICS 289, 308-11 (2000) (suggesting that the ABA's rules on advance consent are unclear);
334. see also Alice E. Brown, Advance Waivers of Conflicts of Interest: Are the ABA Formal Ethics Opinions Advanced Enough Themselves?, 19 GEO. J. LEGAL ETHICS 567, 575-76 (2006);
335. Michael J. DiLernia, Advance Waivers of Conflicts of Interest in Large Law Firm Practice, 22 GEO. J. LEGAL ETHICS 97, 122-26 (2009).
336. MODEL RULES OF PROF'L CONDUCT R. 1.7 cmt 22;
337. see also D.C. Bar, Op. 309 (2001) ("[T]he less specific the circumstances considered by the client and the less sophisticated the client, the less likely that an advance waiver will be valid.").
338. Ass'n of the Bar of the City of N.Y, Formal Op. 2009-6 (2009).
339. 898 A.2d 512 (N.J. 2006). For a discussion of Tax Authority,
340. see supra text accompanying notes 147-52.
341. The Reporters for the ALI project highlighted Tax Authority in support of their proposal.
342. See, e.g., 2008 Discussion of Principles of the Law of Aggregate Litigation, supra note 122 (remarks of Professor Samuel Issacharoff) (laying out the facts of Tax Authority to introduce the advance-consent proposal and calling it "the case that for us sets the stage most clearly"). The terms of the ALI proposal, however, are not limited to cases like Tax Authority in which the claimants are businesses and the settlement involves no serious allocation problems.
343. Tax Authority, 898 A.2d at 515.
344. See Erichson, supra note 125, at 1800.
345. See Moore, supra note 131, at 408-09 (explaining that financial incentives and special relationships with certain clients may bias a lawyer's decision regarding allocation).
346. See supra text accompanying notes 147-52.
347. Cf. FRANÇOIS VOLTAIRE, LA BÉGUEULE, CONTE MORAL (Geneva 1772) ("[L]e mieux est l'ennemi du bien.").
348. See NAGAREDA, supra note 9, at xx: Rather than attempt to legitimize the peace by reference to claimant autonomy, the law instead should look to how other regimes of administration have garnered legitimacy: by using institutional structure to align the interests of the administrators with those of the people whom they are supposed to serve, not by empowering affected persons to opt out.
349. See Benjamin C. Zipursky, Civil Recourse, Not Corrective Justice, 91 GEO. L.J. 695, 738-41 (2003) [hereinafter Zipursky, Civil Recourse] (developing the civil recourse theory of tort law and arguing for its superiority over the corrective justice theory);
350. Benjamin C. Zipursky, The Philosophy of Private Law, in THE OXFORD HANDBOOK OF JURISPRUDENCE AND PHILOSOPHY OF LAW 623, 627-36 (Jules Coleman & Scott Shapiro eds., 2002) (analyzing the concept of right of action within tort law in terms of civil recourse theory);
351. Benjamin C. Zipursky, Rights, Wrongs, and Recourse in the Law of Torts, 51 VAND. L. REV. 1, 70-88 (1998) [hereinafter Zipursky, Rights, Wrongs, and Recourse] (introducing the civil recourse theory of tort law);
352. see also John C.P. Goldberg, The Constitutional Status of Tort Law: Due Process and the Right to a Law for the Redress of Wrongs, 115 YALE LJ. 524, 559-611 (2005) (explaining the historical roots of the civil recourse theory of tort law and indicating its constitutional status). John Goldberg and Benjamin Zipursky have jointly elaborated the civil recourse theory in several subsequent works, most recently
353. JOHN CP. GOLDBERG & BENJAMIN C. ZIPURSKY, THE OXFORD INTRODUCTIONS TO U.S. LAW: TORTS 47-62 (2010);
354. John C.P. Goldberg & Benjamin C. Zipursky, Torts as Wrongs, 88 TEX. L. REV. 917 (2010).
355. For an analysis of claimants' varying relationships to the claimant group, distinguishing between "group-oriented individuals" and "individuals-within-tiie-collective,"
356. see Elizabeth Chamblee Burch, Procedural Justice in Nonclass Aggregation, 44 WAKE FOREST L. REV. 1, 11-24 (2009).
357. Id.
358. See, e.g., Brophy, supra note 162, at 688 ("Arguably, individual autonomy can be enhanced by the implementation of ex-ante consent waivers. Allowing people to choose a form of adjudication based on their preferences for risk enhances rather than diminishes their control over the pursuit of legal recourse.").
359. See Zipursky, Civil Recourse, supra note 189.
360. See Zipursky, Rights, Wrongs, and Recourse, supra note 189, at 4-5.
361. See, e.g., John C.P. Goldberg & Benjamin C. Zipursky, The Easy Case for Products Liability Law: A Response to Professors Polinsky and Shavell, 123 HARV. L. REV. 1919 (2010) (explaining claimant empowerment as critical to the egalitarian aspect of products-liability law).
362. Cf. Burch, supra note 190, at 47-48 (describing the need of claimants in cases like Vioxx to be recognized as individuals).
363. See Hearing, supra note 42 (statement of Bruce M. Psaty, M.D., Professor, Medicine and Epidemiology, University of Washington, Cardiovascular Health Research Unit);
364. Eric J. Topol, Failing the Public Health-Rofecoxib, Merck, and the FDA, 351 NEW ENG. J. MED. 1707, 1708 (2004).
365. Cf McDarby v. Merck & Co., 949 A.2d 223, 232-33 (N.J. Super. Ct. App. Div. 2008) (describing the aggressive marketing campaign by Merck).
366. Anna Wilde Mathews & Barbara Martinez, Warning Signs: E-Mails Suggest Merck Knew Vioxx's Dangers at Early Stage, WALL ST. J., NOV. 1, 2004, at A1.
367. Id.
368. See Hearing, supra note 42 (statement of Bruce M. Psaty, M.D., Professor, Medicine and Epidemiology, University of Washington, Cardiovascular Health Research Unit).
369. See id.
370. See Juni et al., supra note 47, at 2027.
371. See Goldberg, supra note 189, at 607.
372. Cf. THOMAS H. KOENIG & MICHAEL L. RUSTAD, IN DEFENSE OF TORT LAW 9, 67, 207 (2001) (characterizing the role of tort law in permitting individuals to hold corporate malefactors accountable).
373. Cf. Berenson, supra note 2 ("Besides Merck, the biggest winner in the case may be the plaintiffs' lawyers.").
374. See Silver & Baker, Mass Lawsuits, supra note 128, at 762.
375. See Erichson, The Trouble, supra note 74, at 1012-13.
376. Indeed, this is the position taken by the project's Reporter and Associate Reporter in Issacharoff & Klonoff, supra note 8, at 1185.
377. ° See generally RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 184-205 (1978) (analyzing the concept of rights as trumping over considerations of social welfare).
378. See supra text accompanying notes 13-33.
379. See Moore, supra note 131, at 403-05.
380. See supra notes 54-57 and accompanying text.
381. See Berenson, supra note 2.