The Pro-defendant Bias in the Adjudication of Mass Injury Cases

The Pro-defendant Bias in the Adjudication of Mass Injury Cases

Professor David Rosenberg
Spring 2018 reading group
W 5:00pm - 7:00pm
1 classroom credit

Prerequisites: None

Exam: No Exam

Privately financed civil liability actions presenting claims of mass injury serve law enforcement objectives of preventing and redressing such business and government illegalities as toxic torts, product defects, environmental pollution, consumer and securities fraud, corporate misgovernance, antitrust conspiracy, employment discrimination, civil rights deprivations, professional malpractice, and constitutional violations. In this reading group, we will examine the Supreme Court’s invocation of the “ideal” “that everyone should have his own day in court” to justify radically restricting use of class action and other collectivized methods of adjudicating mass injury cases. Analysis of the principal rulings from the perspectives of theory and practice will expose how the Court’s embrace of this individualistic, anti-collectivist ethos has structurally biased adjudication of mass injury cases in favor defendants. Focusing on key modes of collectivized adjudication – including trial and settlement of class and consolidated actions; sampling; risk-based liability; “third party” claim assignment and financing; and insurance-fund judgments – we will consider whether, contrary to the Court’s supposition, individual justice can best be done by collective means. Though essential to practical as well as basic understanding of mass injury litigation, the insights as well as questions we shall consider receive superficial if any treatment in other courses.

Note: This reading group will meet on the following dates: TBD.