David Rosenberg

Lee S. Kreindler Professor of Law

Hauser 500

617-495-4558

Assistant: Kim Peterson / 617-496-7244

Biography

David Rosenberg is the Lee S. Kreindler Professor of Law at Harvard Law School. He graduated from New York University Law School in 1967 and entered practice as an associate with Rabinowitz, Boudin and Standard in New York. He formed the firm of Rosenberg, Baker and Fine in Cambridge in 1972. He joined the Harvard faculty part-time in 1971 and full-time in 1979. His practice, study, teaching, and writing cover diverse subjects, including constitutional law, labor law, criminal law, federal courts, torts, environmental law, civil procedure, and litigation. His work pioneered the policy-oriented approach to complex litigation and mass torts, in particular, by applying theories of law enforcement, deterrence, insurance, and sampling to develop and justify the use of probabilistically proportioned liability and such collectivized modes of adjudication as class action, and more generally to create a new, socially responsible design of the civil liability system . Among Professor Rosenberg’s publications are Making Tort Law: What Should be Done and Who Should Do It (2003) (with Charles Fried); The Hidden Holmes: His Theory of Torts History (1995); A Solution to the Choice-of-Law Problem of Differing State Laws in Class Actions: Average Law, 79 George Washington Law Review (2011) (with Luke McCloud); Improve Medical Malpractice Law by Letting Health Care Insurers Take Charge, 39 Journal of Law, Medicine and Ethics 3 (2011) (with Kenneth Reinker); Mandatory-Litigation Class Action: The Only Option for Mass Tort Cases, 115 Harv. L. Rev. 831 (2002); The Causal Connection in Mass Exposure Case: A ‘Public Law’ Vision of the Tort System, 97 Harv. L. Rev. 849 (1984).

Areas of Interest

David Rosenberg, Mandatory-Litigation Class Action: The Only Option for Mass Tort Cases, 115 Harv. L. Rev. 831 (2002).
Categories:
Civil Practice & Procedure
Sub-Categories:
Class Action Litigation
,
Litigation & Settlement
,
Torts
Type: Article
Abstract
This article provides a response to Richard Nagareda's proposal in "Autonomy, Peace, and Put Options in the Mass Tort Class Action." It focuses on Nagareda's prescriptive claims about what the put option class settlement can achieve within the doctrinal constraints he presumes, rather than on the validity of his interpretation of cases and statutes. Part I summarizes Professor Rosenberg's normative argument that mandatory-litigation class action best deters accidents and insures against accident risks, thus securing maximum individual welfare ex ante. This argument provides a critical basis for assessing the social benefit that Nagareda's proposal sacrifices, the state of the law it presumes, and the prevailing judicial and scholarly opinion it represents. Part II employs the framework outlined in Part I to critique "put option" class action in detail, showing the deficiency and disutility of its design.
David Rosenberg, The Hidden Holmes: His Theory of Torts in History (Harvard Univ. Press 1995).
Categories:
Civil Practice & Procedure
,
Disciplinary Perspectives & Law
,
Government & Politics
,
Legal Profession
Sub-Categories:
Torts
,
Remedies
,
Legal Theory & Philosophy
,
Judges & Jurisprudence
,
Legal History
Type: Book
Abstract
This bold book challenges a contemporary consensus on the titanic figure of Oliver Wendell Holmes. Holmes is the acknowledged source of twentieth-century tort law, but David Rosenberg takes sharp issue with the current portrayal of Holmes as a legal formalist in torts who opposed the notion of strict liability and dogmatically advocated a universal rule of negligence, primarily to subsidize industrial development. Marshaling the evidence found in Holmes' classic "The Common Law" and other writings, the author reveals that the opposite was the case, and, in the process, raises troubling questions about the present state of legal scholarship.
David Rosenberg, The Causal Connection in Mass Exposure Cases: A "Public Law" Vision of the Tort System, 97 Harv. L. Rev. 849 (1984).
Categories:
Civil Practice & Procedure
,
Environmental Law
Sub-Categories:
Litigation & Settlement
,
Class Action Litigation
,
Private Law
,
Torts
,
Toxic Torts
Type: Article
Abstract
Mass exposure accidents, such as those involving DES and asbestos, pose unique problems under the traditional rules and methods of "private law" litigation. Two problems stand out: first, the preponderance-of-the-evidence rule often makes it impossible for plaintiffs to prove causation; second, the substantial costs of litigating mass exposure claims on a case-by-case basis make such claims unattractive to plaintiff attorneys. Professor Rosenberg argues that the resulting preclusion of mass exposure claims frustrates the basic deterrence and compensation objectives of the tort system. He proposes that courts determine causation under a proportionality rule, which would hold manufacturers of toxic agents liable for the proportion of total injuries attributable to their products. In addition, he argues that courts should allow mass exposure cases to proceed as class actions and should employ such innovative remedial techniques as damage scheduling and insurance fund judgments. These "public law" measures, according to Professor Rosenberg, would improve the tort system's ability to fulfill the goals of maximizing social welfare and protecting individual entitlements.
David Rosenberg & Kathryn E. Spier, Incentives to Invest in Litigation and the Superiority of the Class Action, 6 J. Legal Analysis 305 (2014).
Categories:
Civil Practice & Procedure
Sub-Categories:
Class Action Litigation
,
Litigation & Settlement
Type: Article
Abstract
We formally demonstrate the general case for class action in a rent-seeking contest model, explaining why separate action adjudication is biased in the defendant's favor and collective adjudication is bias free. Separate action bias arises from the defendant's investment advantage in capitalizing on centralized control over the aggregate (classwide) stake in the common question defense, while the plaintiff, with only an individual recovery at stake, spends much less. Class action eliminates bias by enabling both parties to make their best case through centralized optimal classwide investments. Our social benefit-cost analysis shows that class action surpasses alternative methods for achieving bias-free adjudication.
Luke McCloud & David Rosenberg, A Solution to the Choice of Law Problem of Differing State Laws in Class Actions: Average Law, 79 Geo. Wash. L. Rev. 374 (2011).
Categories:
Civil Practice & Procedure
Sub-Categories:
Remedies
,
Class Action Litigation
,
Choice of Law
,
Litigation & Settlement
Type: Article
Abstract
In this Essay, we show why and how to apply the average of differing state laws to overcome the choice of law impediment currently blocking certification of multistate, federal diversity class actions. Our main contribution is in demonstrating that the actual law governing a defendant’s activities involving interstate risk is in every functionally meaningful sense the same, regardless of whether it is applied in disaggregated form, state-by-state at great cost, or in aggregated form, on average at far less cost. We refute objections to using the average law approach, including that average law subjects defendants to a law of which they lacked notice at the time of the underlying conduct, fails to accurately reflect and enforce the substantive differences among the governing state laws, and undermines the sovereign lawmaking power of states to enact their distinctive policy preferences. To facilitate use of the average law approach, we also sketch the means for practically implementing the average law solution in different types of class action to determine a defendant’s aggregate liability and damages.
David Rosenberg & Kenneth Reinker, Improve Medical Malpractice Law by Letting Health Care Insurers Take Charge, 39 J.L. Med. & Ethics 3 (2011).
Categories:
Civil Practice & Procedure
,
Health Care
,
Corporate Law & Securities
Sub-Categories:
Insurance Law
,
Litigation & Settlement
,
Torts
,
Remedies
,
Medical Jurisprudence
,
Health Law & Policy
Type: Article
Abstract
This essay discusses unlimited insurance subrogation (UIS) as a means of improving the deterrence and compensation results of medical malpractice law. Under UIS, health care insureds could assign their entire potential medical malpractice claims to their first-party commercial and government insurers. UIS should improve deterrence by establishing first-party insurers as plaintiffs to confront liability insurers on the defense side, leading to more effective prosecution of meritorious claims and reducing meritless and unnecessary litigation. UIS should improve compensation outcomes by converting litigation cost- and risk- laden "tort insurance" into cheaper and enhanced first-party insurance. UIS also promises dynamic benefits through further reforms by contract between the first-party and liability insurers that would take charge of system. No UIS-related costs are apparent that would outweigh these benefits.
Bruce L. Hay, Christopher Rendall-Jackson & David Rosenberg, Litigating BP's Contribution Claims in Publicly Subsidized Courts: Should Contracting Parties Pay Their Own Way?, 64 Vand. L. Rev. 1919 (2011).
Categories:
Corporate Law & Securities
,
Civil Practice & Procedure
,
Government & Politics
Sub-Categories:
Litigation & Settlement
,
Remedies
,
Torts
,
Class Action Litigation
,
Courts
,
Government Accountability
Type: Article
Abstract
In this Article, we focus on an important problem with mass-accident cases, a problem highlighted by the Deepwater Horizon litigation: overuse of courts to enforce contribution claims. These claims seek to allocate liability among the business and governmental entities that contractually participated in the risky venture. Joint and several liability with provision for contribution, for example, enables plaintiffs asserting primary claims to recover all proven damages from a single “deep-pocket” defendant, regardless of that defendant’s own share of legal responsibility for the harm, and then authorizes the defendant to sue other joint venturers to recoup payments in excess of its proportionate share of liability. The key point for our purposes is that contribution claims are entirely creatures of the joint venturers’ own making. Through a contract that establishes the terms of their joint venture relationship (“predispute contract”), the parties can exercise complete control over whether to subject themselves to contribution claims, and, if so, whether to resolve the claims by publicly funded courts or by a privately funded alternative, such as arbitration. Because the parties prosecuting and defending against contribution claims can consume judicial resources largely free of charge, it is likely they will choose to litigate in court to a greater extent than is socially desirable. The specific, socially detrimental result of such distorted litigation incentives is delayed resolution of cases that merit greater priority in gaining access to public judicial resources. Generally, these are cases in which the claimants lacked predispute contractual means to control risk and provide for nonjudicial alternatives, and hence the principal social benefits of deterrence and compensation depend on court-enforced civil liability. We argue that courts can effectively correct the contracting parties’ incentives by charging them for the cost of using the judicial process. Requiring contracting parties to pay their way in court would free up judicial resources to increase the average level of benefits from adjudication. Such a user fee, as we show, can be extended to almost all commercial-contract cases.
David Rosenberg, Collectivising Private Enforcement of Antitrust Law: A Reform Proposal for the United States and Possibly Beyond, 3 Global Competition Litig. Rev. 11 (2010).
Categories:
Corporate Law & Securities
,
International, Foreign & Comparative Law
Sub-Categories:
Antitrust & Competition Law
,
Comparative Law
Type: Article
Robert J. Jackson, Jr. & David Rosenberg, A New Model of Administrative Enforcement, 93 Va. L. Rev. 1983 (2007).
Categories:
Environmental Law
,
Government & Politics
Sub-Categories:
Climate Change
,
Natural Resources Law
,
Energy & Utilities Law
,
Administrative Law & Agencies
Type: Article
Abstract
This Essay proposes a new method of monitoring regulatory compliance by a firm that operates multiple sources of risk, such as air polluting smokestacks. The expense of individually monitoring such sources may consume a large share of the agency's enforcement budget, undermining deterrence objectives. Under our approach, regulators would instead randomly select one of the firm's sources of risk, determine the firm's liability at that source, and apply that outcome perforce as determinative of liability at all of the sources. This method, which we call single-outcome sampling (“SOS”), replicates or improves deterrence generated by the current source-by-source enforcement model, but at a fraction of the cost. To demonstrate these benefits, we apply SOS to the EPA's monitoring of compliance with Clean Air Act regulations. We also address potential risk-bearing and judgment-proof costs associated with our proposal and explain how both problems can be solved.
David Rosenberg, The Judicial Posner on Negligence versus Strict Liability: Indiana Harbor Belt Railroad Co. v. American Cyanamid Co., 120 Harv. L. Rev. 1210 (2007).
Categories:
Civil Practice & Procedure
,
Legal Profession
,
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Torts
,
Torts - Negligence
,
Litigation & Settlement
,
Remedies
,
Private Law
,
Law & Economics
,
Judges & Jurisprudence
,
Legal Scholarship
,
Biography & Tribute
,
Legal Education
Type: Article
Abstract
Does Richard Posner lead a double life as scholar and judge? Posner’s prodigious and prolific scholarship, developing and applying the functionalist, rational approach (he might call it economic or pragmatic) in virtually every field of law, ranks him among the greatest legal thinkers. It also places him at the forefront of the revolutionary assault on the formalist establishment’s continuing dominance of the teaching, and therefore the practice, of law. Indeed, scholarly Posner seems to relish the role of provocateur; witness his recent contribution in these pages skewering the pontiffs of constitutional law. But what of Judge Posner, now marking his twenty-fifth year on the Court of Appeals for the Seventh Circuit? In that time he has served a lengthy term as Chief Judge and authored volumes of opinions. Besides wondering how he does it all, I want to know how Posner squares the role of judge with that of scholar provocateur. Is he a judicial Clark Kent, passing himself off as a mild-mannered, droll, keen-witted judge, wearing glasses and a black robe as a disguise, only to throw them off to write seditious tracts and save the world? Some clues may be found in Indiana Harbor Belt Railroad Co. v. American Cyanamid Co., a Posner opinion that has become a basic staple of torts courses on the preeminent question of when it is better to use negligence or strict liability. After commenting on the importance as well as the problematics of this opinion, I surmise what he might actually be up to — all in tribute to the judicial Posner.
David Rosenberg & Kenneth S. Reinker, Unlimited Subrogation: Improving Medical Malpractice Liability by Allowing Insurers in Charge, 36 J. Legal Stud. 261 (2007).
Categories:
Health Care
,
Civil Practice & Procedure
,
Corporate Law & Securities
Sub-Categories:
Insurance Law
,
Litigation & Settlement
,
Health Law & Policy
,
Medical Jurisprudence
Type: Article
Abstract
This paper proposes a solution to many of the basic problems with the current system of medical malpractice liability. By all accounts, despite consuming more than $20 billion annually, this system has proven ineffective and probably counterproductive as a means of deterrence and source of insurance. High litigation cost precludes or suppresses vigorous prosecution of most meritorious claims, while it motivates filing of unmeritorious claims for nuisance value payoffs. Patients are compelled to buy "tort insurance" that not only doubles the coverage for economic loss they already have and can cheaply supplement from commercial and governmental suppliers of first-party insurance, but also mandates coverage for non-pecuniary harm that no one wants if they have to pay higher premiums and taxes to get it. The solution is simply to change the law of insurance subrogation as it applies to insurers acquiring their insureds' tort claims. Currently the rule limits subrogation to the amount an insurer paid in covering its insured's loss. The proposed change would allow insurers to acquire their insureds' potential malpractice claims without limitation, including recovery of all damages, non-pecuniary as well as economic. In short, the paper proposes unlimited insurance subrogation (UIS) as a natural and efficient vehicle for patients to assign their entire potential malpractice claims to their first-party insurers. UIS will thereby improve both deterrence and insurance results of medical malpractice liability. By making first-party insurers plaintiffs and placing them on the same footing as their defense-side counterparts, liability insurers, UIS should increase the rate at and effectiveness with which meritorious claims are prosecuted and also reduce meritless litigation, as these large-scale, longterm repeat players will possess the needed means of mutual deterrence and motive for mutual cooperation. At the same time, as first-party insurers lower premiums (and taxes) in anticipation of subrogated claim recoveries, UIS will operate to convert expensive, risky, dilatory, and to a large extent unwanted tort insurance into a greater amount of more optimal first-party insurance. In addition to these direct benefits, UIS should encourage first-party and liability insurers to establish by contract a "private" system for more efficaciously resolving medical malpractice claims. The paper addresses possible costs of UIS, notably loss of patient cooperation in subrogation suits and jury sympathy for plaintiffs; none is found to pose a substantial problem.
David Rosenberg & James P. Sullivan, Coordinating Private Class Action and Public Agency Enforcement of Antitrust Law, 2 J. Comp. L. & Econ. 159 (2006).
Categories:
Corporate Law & Securities
,
Civil Practice & Procedure
,
Government & Politics
Sub-Categories:
Antitrust & Competition Law
,
Litigation & Settlement
,
Remedies
,
Torts
,
Class Action Litigation
,
Administrative Law & Agencies
,
Courts
,
Congress & Legislation
,
Separation of Powers
Type: Article
Abstract
This essay sketches a new approach to ameliorating the problem of coordinating the use of private class actions and public policing to enforce American antitrust law. Achieving the optimal joint level of enforcement from any system that teams public and private law enforcers requires a coordination mechanism to assure not only that each makes the appropriately motivated and proportionate investment of resources and effort, but also that their respective litigation and settlement decisions are properly synchronized and combined. Our proposal addresses this double-sided coordination problem with a sequential enforcement mechanism. In essence, the system would work as follows: (i) total enforcement license initially vests with the public enforcer; (ii) public enforcer auctions private license to enforce a mandatory-litigation class action; (iii) winning bidder retains recovery from class judgment or settlement; (iv) auction proceeds are deposited with and immediately distributed by the court for compensatory purposes; and (v) public enforcer has option to buy back the private license at the winning bid price. Our approach is superior to the current judicial methods of coordination, which are undertaken through a process of applying doctrines of pre-emption, statutory interpretation, and class action prerequisites. These judicial methods are haphazard and are hampered by courts' information deficits. Our approach is also preferable to proposed statutory reforms that would give public authorities exclusive power to prosecute or terminate the class action on their own, or to intervene and exert some control over private enforcement actions. Our approach affords public enforcers these same options to control the use of class actions. Unlike our approach, however, such reform proposals make no attempt to deal with the problem of giving public authorities appropriate incentives in the decision whether to interfere with private enforcement actions.
David Rosenberg & Steven Shavell, A Solution to the Problem of Nuisance Suits: The Option to Have the Court Bar Settlement, 26 Int'l Rev. L. & Econ. 42 (2006).
Categories:
Civil Practice & Procedure
,
Government & Politics
,
Legal Profession
,
Disciplinary Perspectives & Law
Sub-Categories:
Torts
,
Remedies
,
Private Law
,
Practice & Procedure
,
Litigation & Settlement
,
Law & Economics
,
Courts
,
Judges & Jurisprudence
Type: Article
Abstract
A solution to a broad category of nuisance suits is examined in this paper. The solution is to give defendants the option to have courts prevent settlements (by refusing to enforce them). Then, if a defendant knows he is facing a plaintiff who would not be willing to go to trial, the defendant would exercise his option to bar settlement, forcing the plaintiff to withdraw. And because the plaintiff would anticipate this, he would not bring his nuisance suit in the first place.
David Rosenberg & Steven M. Shavell, A Simple Proposal to Halve Litigation Costs, 91 Va. L. Rev. 1721 (2005).
Categories:
Civil Practice & Procedure
,
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Torts
,
Remedies
,
Private Law
,
Litigation & Settlement
,
Law & Economics
,
Courts
Type: Article
Abstract
This Essay advances a simple proposal that could reduce civil litigation costs in the country by about half, yet without compromising the functioning of our liability system in a significant way. The proposal has two parts. First, courts would select randomly for litigation only half the cases brought before them; courts would not allow the other half to proceed. Second, in cases accepted for litigation and in which judgments for damages issue, courts would double the level of damages. Thus, the proposal might be described as one of random adjudication with dobule damages.
Charles Fried & David Rosenberg, Making Tort Law: What Should Be Done and Who Should Do It (AEI Press 2003).
Categories:
Civil Practice & Procedure
,
Legal Profession
Sub-Categories:
Torts
,
Legal & Political Theory
Type: Book
Abstract
In Making Tort Law: What Should Be Done and Who Should Do It, Harvard law professors Charles Fried and David Rosenberg note that the system of tort liability in the United States seeks to achieve a variety of aims: to compensate individuals injured by the risky business activities of large entities; to create incentives for those entities to take into account the dangers of their activities in the design of their processes, products, and services; and to allow individuals who feel powerless to make their grievances felt against large, impersonal, and sometimes unresponsive organizations. The authors contend, however, that our current tort system is almost certainly not the best possible way to achieve those goals. At best, they claim, compensation represents an uncertain, delayed, and expensive form of insurance. In addition, the disciplining effect on business is haphazard. Fried and Rosenberg assess the comparative advantages of courts and legislatures in taking the initiative of changing tort law to further the social objective of optimally managing accident risk. They conclude that the nature of the change involved–particularly the function that the change would serve and the means that would work best–strongly suggests that the legislature should play the major role in designing tort reform. And they contend that automobile and other nonbusiness-related accidents should be eliminated from the tort system.
David Rosenberg, Decoupling Deterrence and Compensation Functions in Mass Tort Class Actions for Future Loss, 88 Va. L. Rev. 1871 (2002).
Categories:
Civil Practice & Procedure
,
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Torts
,
Private Law
,
Remedies
,
Class Action Litigation
,
Litigation & Settlement
,
Law & Economics
,
Courts
Type: Article
Abstract
Mass tort cases involving serious personal injury are generally deemed inappropriate for class action treatment. It is presumed that in these cases adjudicative costs of determining non-common questions to individualize class members' recoveries negate judicial economies from trial of common questions on a class-wide basis. This presumption defies logic, lacks empirical substantiation, and most troubling for a legal system devoted to enhancing individual welfare, takes no account of the adverse tort deterrence and insurance consequences of relegating claims to the standard process of separate actions. Indeed, the presumption seems less the product of analysis than habit--the convention of resolving class actions by “integrated” final judgment that cumulates the results of common and non-common question trials. Under this form of judgment, success for the class and its counsel is contingent not only on their collectively winning class-wide trial of the common questions, but also on the extent to which each class member recovers damages in separate trial of the non-common questions. In effect, the integrated judgment holds class action deterrence benefits hostage to the costs and contingencies of individualizing compensation for class members, and in the process thwarts both objectives. This essay proposes to solve this problem by decoupling deterrence from compensation functions of mass tort class action. In particular, decoupling would result in two, separate final class rulings and related fee awards. The first ruling would issue upon class-wide trial of the common questions that determines aggregate liability and damages. This determination is sufficient for deterrence purposes. Because mass torts arise from the systematic risks of mass production processes and goods (products and services), the only questions of relevance to deterrence are common and indeed mostly statistical. The second ruling (assuming the class wins the first) would take the form of an insurance fund judgment that prescribes the terms and conditions for distributing the aggregate damage award (or the commercial insurance coverage that the award purchases) to compensate specified losses as far as practicable and if and when class members incur them. Distributing the fund for maximum insurance benefit eliminates much of the costly individualization. Significantly, even if the costs of individualizing severity of loss and deterrence incentives (e.g. contributory negligence) for insurance purposes preclude or reduce compensation for some fraction of class members (smaller than in the more costly and risky separate action process), decoupling fully achieves deterrence goals and thus makes everyone better off.
David Rosenberg, The Regulatory Advantage of Mass Tort Class Action, in Regulation by Litigation (W. Kip Viscusi ed., 2002).
Categories:
Civil Practice & Procedure
Sub-Categories:
Torts
,
Class Action Litigation
Type: Book
Bruce L. Hay & David Rosenberg, 'Sweetheart' and 'Blackmail' Settlements in Class Actions: Reality and Remedy, 75 Notre Dame L. Rev. 1377 (2000).
Categories:
Civil Practice & Procedure
Sub-Categories:
Class Action Litigation
,
Litigation & Settlement
Type: Article
David Rosenberg, Litigating Civil Rights and Civil Liberties in the United States: A Vital but Flawed Enterprise, in Litigating the Values of a Nation: The Canadian Charter of Rights and Freedoms 357 (Joseph M. Weiler & Robin M. Elliot eds., 1986)
Categories:
Civil Practice & Procedure
,
Discrimination & Civil Rights
,
International, Foreign & Comparative Law
Sub-Categories:
Litigation & Settlement
,
Civil Rights
,
Foreign Law
Type: Book

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Hauser 500

617-495-4558

Assistant: Kim Peterson / 617-496-7244