Apr 22, 2014 Robin J. Effron
Fair and global resolutions to mass tort claims are not easy to achieve. Aggregation of claims, either through a formal class action or perhaps through multi-district litigation (“MDL”) consolidation, has been a key feature of mass tort litigation for several decades. In an MDL, related cases filed in federal court may be consolidated before a single judge for coordinated pre-trial proceedings, including settlement. The benefits and limitations of aggregation generally, and the MDL device itself, have been the subject of numerous academic papers. American federalism places a stumbling block in the way of complete aggregation – the presence of related but non-removable claims pending in state court, which cannot be part of that consolidated federal action.
While many scholars have viewed non-removable claims as a limitation on the success of aggregation, surprisingly few have tackled the issue head on. Maria Glover provides a thoughtful and thorough investigation of this problem in Mass Litigation Governance in the Post-Class Action Era: The Problems and Promise of Non-Removable State Actions in Multi-District Litigation. Unlike scholars who have come before her, Glover does not dismiss the issue as an annoying yet intractable problem, although she does not purport to “solve” it. Rather, her article is a fresh and inventive take on this problem, in which she suggests that the presence of non-removable state actions might actually be beneficial to the resolution of mass tort claims.
Champions of aggregation have promoted complete consolidation of related claims on the theory that a global peace is difficult to achieve when defendants face the uncertainties of resolving parallel claims, and that the global settlements that parties reach in such cases lack in fairness and legitimacy because they do not account for the voices and needs of all possible claimants. Glover argues that these parallel claims need not necessarily block global settlements nor detract from their legitimacy. Instead, “the non-removable state cases, used as test cases, would provide information about what actually happens when these cases are litigated in front of the relevant state judge and tried (where applicable) before a jury pooled from the relevant geographic area.” In other words, non-removable state actions provide important data, not just about circumstances and values of individual claims under the relevant state substantive law, but about how such claims interact with the nuances of local practice and procedure.
Because federalism is one of the major stumbling blocks to complete and seamless aggregation (both in terms of jurisdiction over claims and in terms of a unified answer to choice-of-law problems), scholars have assumed that federalism must be part of the solution, either by adjusting federalism theory to accommodate greater consolidation, or by using current federalism theory to justify current allocations of jurisdiction. Glover’s main insight respects “happenstantial federalism,” the idea that “federalism may foster conditions that would aid in mass litigation governance, but those conditions do not stem from the typically cited purposes or values underlying federalism itself.” That is, the jurisdictional facts that render such claims non-removable are immaterial to their value as information for a global settlement. The values of federalism should not lead judges or scholars to accord either greater or lesser weight and legitimacy to these decisions. It is the mere fact of federalism and not the reason of federalism that has assigned such claims to a place outside of an aggregation. The outcomes of these cases, both in terms of substantive legal rulings and in terms of award values, can provide valuable information for the settlement grids that are frequently used in global settlements of mass tort cases.
At one level, the idea of happenstantial federalism is rather benign and obvious: of course it is the case that our federal structure creates circumstances and consequences that are unrelated to the core values of federalism. But Glover is suggesting something deeper than that. Her insight is that once these particular benefits of federalism are recognized as being “happenstantial,” we are no longer tied to the values of federalism in defining and justifying these benefits. For a scholar such as Robert Post, the pendency of non-removable state court claims was part of a larger system of “jurisdictional redundancy,” a powerful concept, but one that relied heavily on federalism values for its overall force and cohesiveness. For Glover, however, the benefits of non-removable state claims are purely instrumental. Thus, their use can be purely instrumental, rather than shoehorning those benefits into a framework of federalism values—values that, frankly, are of little relevance to the utility of state court cases as additional data points in a global settlement grid. Unmoored from the restraints of justification within the theoretical framework of federalism, Glover is free to suggest that state court resolution of cases can enhance the legitimacy of global federal settlements simply because of the data that the state court cases produce.
The main barrier to optimal instrumental use of such data is that the state court cases that produce results – whether in the form of judicial disposition on the merits, trial verdicts, or settlements – are not chosen according to any statistical sampling method. They are, by their very nature, “happenstantial.” Glover notes this limitation and suggests further inquiries and studies into how such random data might be harnessed in a statistically rigorous fashion. Students of law and economics would do well to take up this invitation; together with Glover’s theoretical work, it could provide a powerful advancement in how lawyers, judges, and academics view and structure complex litigation that cannot be consolidated into a single forum.
Cite as: Robin J. Effron,
Federalism and Mass Tort Litigation, JOTWELL
(April 22, 2014) (reviewing J. Maria Glover,
Mass Litigation Governance in the Post-Class Action Era: The Problems and Promise of Non-Removable State Actions in Multi-District Litigation,
J. Tort Law (forthcoming 2014)),
https://courtslaw.jotwell.com/federalism-and-mass-tort-litigation/.
Apr 4, 2014 Corey Rayburn Yung
What is the scope of precedent? It is a fundamental question in American law that has proven difficult to answer with precision. As courts, especially the Supreme Court, have increasingly crafted long, often rambling, opinions, it has become more difficult for other courts to interpret such judgments. Adam Steinman’s recent article, To Say What the Law Is: Rules, Results, and the Dangers of Inferential Stare Decisis, offers a key insight and valuable contribution toward explaining how courts should apply prior precedents to new facts.
The basic distinction Steinman draws in understanding stare decisis is between the rules stated by the precedent-setting court and the results reached by the precedent-setting court. In focusing on results (what Steinman terms “inferential stare decisis”), a court justifying its present judgment must reconcile its holding with the outcome of every precedential court opinion. Steinman, in contrast, argues that courts should not be obligated to conform their decisions with the results of prior binding opinions, but rather must follow the rule(s) articulated by the prior court. This approach decreases the constraining effect of prior decisions in one way, but increases their constraining effect in another. Future courts are less constrained in that they are not required to reconcile their decisions with the mere results of earlier ones. But they are more constrained in that, where the precedent-setting court has stated a rule, the future court cannot simply point to factual differences between the two cases and disregard the rule entirely. It would need to articulate a distinguishing rule that justifies a different result.
Steinman focuses his discussion on two recent high-profile Supreme Court procedure cases: Wal-Mart Stores, Inc. v. Dukes and Ashcroft v. Iqbal. Both cases have been attacked as creating “bad law,” but Steinman contends that the problems those cases create presume a particular approach to stare decisis. Steinman’s argument is widely applicable to a range of substantive areas. And because you can simply read the article (Section II) to appreciate the careful analysis of the precedential components of the majority opinions from those two cases, I want to illustrate the value of his normative perspective by applying it to another highly salient opinion with a longer timeframe of application: Lawrence v. Texas. Whereas Steinman’s examples show the danger of using inferential stare decisis to magnify a decision’s precedential effect, Lawrence provides an example of courts using such an approach to give precedent an unusually narrow interpretation.
At the time the Supreme Court decided Lawrence in 2003, many thought it represented a sea change in protecting sexual liberty. From the perspective of the rights of LBGT persons in America, the symbolic effects were surely significant. Although the majority opinion by Justice Anthony Kennedy is not a model of clarity, there should be little doubt that laws like the Texas anti-sodomy statute were found constitutionally infirm. As Justice Kennedy wrote: “The question before the Court is the validity of a Texas statute… [It] furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.” And yet, over a decade later, the types of stare decisis problems Steinman articulates are manifested in lower courts application of Lawrence to sexual liberty cases.
In cases involving minors, prostitutes, people engaged in BDSM relationships, and rape, courts have repeatedly allowed prosecutions under the type of anti-sodomy statutes Lawrence invalidated by implicitly adopting the theory of inferential stare decisis Steinman criticizes. For example, in 2005, in State v. Pope, a North Carolina appellate court rejected a Lawrence challenge to the state’s anti-sodomy statute. In that case, an undercover police officer asked Teresa Darlene Pope for oral sex in exchange for money (to which she agreed). Prosecutors charged Pope not just with solicitation of prostitution, but also solicitation of crimes against nature because the act agreed to was sodomy (oral sex). Pope pled guilty to the prostitution charge, but argued that Lawrence barred enforcement of the anti-sodomy statute. The court rejected Pope’s argument because it viewed the Lawrence holding as inapplicable to prostitution; therefore, it did not violate the Constitution to apply the anti-sodomy statute to “the solicitation of a sexual act it deems a crime against nature.”
The North Carolina court’s interpretation of Lawrence fits squarely into the situations that Steinman’s proposal avoids. The judge read Justice Kennedy’s proclamation in Lawrence from a results perspective. That is, if commercial sex was not at issue in Lawrence, then Lawrence does not prohibit using an anti-sodomy statute against a prostitute. However, if the court had simply followed the rule of Lawrence, it would have found that the anti-sodomy portion of the North Carolina crimes against nature law, which was founded upon historical animus infringing upon sexual liberty, is necessarily unconstitutional under the Due Process Clause of the Fourteenth Amendment. Under a correct understanding of Lawrence, the prostitution charge would be constitutionally permissible, but prosecution for violating the anti-sodomy law would not. Instead, states with anti-sodomy laws have continued to enforce those statutes in cases with facts distinguishable from those in Lawrence.
What Steinman has offered is a rubric for analyzing and criticizing questionable past applications of precedent and a tool for fairly and consistently applying precedent in the future. Because of its value, I wanted to show, in my brief writing here, its applicability well beyond the two instances he articulates. Indeed, I would venture to guess that many instances of misapplication of precedent known to you, the reader, would be better understood through the theoretical lens proffered by Steinman. In the end, the problems of stare decisis will not disappear if courts take Steinman’s suggestions seriously. However, the rule-based approach Steinman proposes would go a long way toward addressing the most substantial issues in defining the scope of precedent.
Cite as: Corey Rayburn Yung,
Distinguished Precedents, JOTWELL
(April 4, 2014) (reviewing Adam N. Steinman,
To Say What the Law Is: Rules, Results, and the Dangers of Inferential Stare Decisis, 99
Va. L. Rev. 1737 (2013)),
https://courtslaw.jotwell.com/distinguished-precedents/.