Explore the vast range of titles available.

Over the past century, the allegation that the tort liability system incentivizes legal extortion and is chock-full of fraudulent claims has dominated public discussion and prompted lawmakers to ever-more-creatively curtail individuals' incentives and opportunities to seek redress. Unsatisfied with these conventional efforts, in recent years, at least a dozen corporate defendants have \"discovered\" a new fraud-fighting tool. They've started filing retaliatory RICO suits against plaintiffs and their lawyers and experts, alleging that the initiation of certain nonmeritorious litigation constitutes racketeering activity—while tort reform advocates have applauded these efforts and exhorted more \"courageous\" companies to follow suit. Curiously, though, all of this has taken place against a virtual empirical void. Is the tort liability system actually brimming with fraudulent claims? No one knows. There has been no serious attempt to analyze when, how often, or under what conditions fraudulent claiming proliferates. Similarly, tort reformers support RICO's use because, they say, conventional mechanisms to deter fraud fall short. But are conventional mechanisms insufficient? Hard to say, as there is no comprehensive inventory of the myriad formal and informal mechanisms already in use; nor do we have even a vague sense of how those mechanisms actually operate. Further, though courts have started to green-light retaliatory RICO actions, no one has carefully analyzed whether these suits are, on balance, beneficial. Indeed, few have so much as surfaced relevant risks. Addressing these questions, this Article attempts to bring overdue attention to a problem central to the tort system's operation and integrity.

Over the past three decades, Lone Pine orders have become a fixture of the masstort landscape. Issued in large toxic-tort cases, these case-management orders require claimants to come forward with prima facie injury, exposure, and causation evidence by a date certain–or else face an early and unceremonious dismissal. So far, the orders have been mostly heralded as an inventive and efficient way to streamline and expedite the resolution of complex cases. They are, many believe, an antidote to the assertion of dubious filings. Yet it's not so simple. This Article identifies and analyzes various drawbacks associated with Lone Pine orders, including their inconsistent application, incompatibility with formal procedural rules, and insistence on using a binary screen to address a question that is, at bottom, insusceptible to a binary resolution. Given these problems, it ultimately concludes that courts ought to scale back their use of this potent procedural device. But that's just the half of it. Lone Pine orders are not just important because of what they do. They are also important because of where they sit: squarely at the intersection of broader currents that are quietly transforming contemporary civil litigation. These currents include the rapid and seemingly insatiable growth of multidistrict litigation, the durable embrace of managerial judging, the counterrevolution against federal litigation, the ever-more-preliminary disposition of claims, and both the formal and informal customization of procedural mechanisms. Weaving these seemingly disparate currents together, this study offers fresh insights to deepen–and, in places, complicate–our understanding of these profoundly influential phenomena.

The latest in a long line of reform proposals, health courts have been called \"the best option for fixing our broken system of medical justice.\" And, if health courts' supporters are to be believed, these specialized courts are poised to revolutionize medical malpractice litigation: They would offer faster compensation to far more people, while restoring faith in the reliability of legal decisionmaking. But these benefits are, as some leading supporters have acknowledged, \"hoped for, but untested.\" The question remains: Will health courts actually operate as effectively as proponents now predict? The best evidence to answer that question comes, I suggest, from the Vaccine Injury Compensation Program (VICP)—a Program that employs very similar procedures to handle very similar claims and that had, at its birth, a very similar ambition. Mining nearly three decades of previously untapped material concerning the VICP's operation, this Article analyzes how an American compensation program that wrests jurisdiction from traditional courts has, in practice, fared. Findings are discouraging. Though the VICP and health courts share many of the same procedural innovations, those innovations, in the VICP context, have largely failed to expedite adjudications and rationalize compensation decisions. This fact carries significant implications for health courts, suggesting that they won't operate nearly as effectively as their proponents now predict. More broadly, this study of an American no-fault regime, in action and over time, enriches—and at times complicates—current understanding of the prospects, promise, and \"perceived virtues\" of other specialized courts and alternative compensation mechanisms.

Catalyzed by the #MeToo movement, states have adopted a spate of laws restricting secret settlements—controversial contracts that shield misconduct from public scrutiny. In 2018, California led the charge with the Stand Together Against Non-Disclosure (STAND) Act, which targets secrecy in the resolution of sex discrimination, harassment, and abuse cases. In the intervening years, more than a dozen states followed suit with restrictions of their own. Reigniting a decades-old debate, transparency advocates hail these reforms as a major win for victims. They celebrate STAND and its legislative progeny as a way to promote accountability, facilitate accuracy in case adjudication, and publicize (and thus deter) abuse. Critics, meanwhile, warn that the reforms will hurt those they intend to help. By reducing defendants' incentive to settle, confidentiality bans will undercut victims' negotiating leverage, depress settlement sums, clog courts, and, perhaps worst of all, discourage victims from coming forward in the first place. Nested within this debate sits a raft of confident, conflicting—and also eminently testable—claims about what exactly happens in the wake of reform. Will defendants still settle, even if secrecy isn't on offer? How do anti-secrecy reforms actually alter the litigation landscape? Will case filings disappear? Or will they spike and drag on, as litigation turns scorched-earth? Debate over these questions has raged since the 1980s; the #MeToo movement only unleashed its modern incarnation. And, over these decades, the debate has always centered on fervent predictions regarding each. Yet no one has meaningfully tested them.

Over the past half-century, product-related public health crises have claimed millions of American lives. Two of these crises have been especially prominent: tobacco and opioids. In this Article, we zero in on both controversies. Like many before us, we trace how these two addictive and deadly products became widely used by the American public and analyze the myriad ways in which the products-cigarettes and prescription painkillers-are similar. From there, however, we part ways with previous analyses, as we look beyond these surface similarities to the many ways tobacco and opioids are markedly different from one another. This analysis of differences-focusing on the products' substitutability, social utility, and price sensitivity-ultimately underscores the crushing, and easily underestimated, challenges policymakers face, to the extent they try to curb the opioid epidemic using tried-and-true supply-side mechanisms. We then turn from the crises themselves to the litigation each has generated. From a distance of two decades, we tally the successes and failures of tobacco litigation-which began in the 1950s and crested in the late 1990s-and analyze how that mixed scorecard has informed, and, going forward, ought to inform, the sprawling opioid litigation: the most complex civil action ever tackled by any American court. Finally, moving beyond this comparative analysis, we address both the future and the utility of public health litigation. Many have asked: What is the role of litigation when it comes to promoting public welfare? Harnessing lessons from both tobacco and opioids, our answer to that question offers new insights for how tort litigation complements-and, under certain conditions, can catalyze-broader regulatory strategies.

It has long been taken as gospel that attorney advertising drives down the cost of legal services. The Supreme Court assumed it when first permitting attorney advertising in the landmark First Amendment case, Bates v. State Bar of Arizona. And, in the decades following Bates, courts, commentators, the ABA, and the FTC have followed suit, frequently touting advertising's ability to cut consumer costs. The price effect of attorney advertising is thus both seemingly settled and also deeply embedded in its judicial justification. But there is a wrinkle. Though it appears advertising did drive down prices for routine legal services in the years immediately following Bates, in the intervening decades, there has been a decided, yet heretofore unexplored, shift. Contemporary attorney advertising is now mostly the province of the personal injury bar. Yet there is scant evidence that attorney advertising reduces the contingency fees personal injury lawyers charge. To the contrary, the best, most sophisticated, most comprehensive study of legal fees and attorney advertising ever conducted found that, unlike for most basic legal services (e.g., wills, personal bankruptcies, uncontested divorces), those who advertised personal injury legal services charged higher prices than their non-advertising counterparts. Other evidence likewise shows contingency fees have not dropped, even while personal injury lawyers' ad expenditures have soared. This fact has been all but ignored, though it is of enormous consequence for both the legality of attorney advertising and the delivery of legal services more generally. This Article aims to reopen and reorient the \"settled\" attorney advertising debate, in light of the particularities of personal injury practice and the changing nature of the market for personal legal services in the United States.

Two tort law tenets are broadly accepted. First, litigants are to be judged based on their conduct, not on their character. In tort law, if not in heaven, the sinner is entitled to the same treatment as the saint. Second, it’s also broadly understood that, as comparative negligence supplanted contributory fault in the latter years of the last century, compensation stopped being binary; recovery became proportional. When, as is very often the case, the plaintiff and the defendant both err, the plaintiff’s entitlement to compensation is a matter of more or less, not yes or no. Against that backdrop, this Essay identifies four doctrines—the wrongful conduct rule, the “innocence” prerequisite to legal malpractice actions, the non-innocent party doctrine, and the complicity defense—that implicitly challenge both of these bedrock principles. We show how these “wrongdoer doctrines” extinguish claims, not just because of what the plaintiff has done but, rather, who the plaintiff is. And we also explore the doctrines’ other infirmities. Namely, these doctrines subvert the basic goals of tort law, authorize character assassination, defy consistent or principled application, rest on a false premise, and operate to resurrect a stealth version of contributory fault. Finally, this Essay, written for a symposium celebrating the great tort cases of the 21st century, highlights a recent opinion out of West Virginia that unmasked one such doctrine and appropriately relegated it to the dustbin of history.

This Essay gingerly enters the tort theory “wars” that torts scholars have been debating for many decades. Is the essence of tort law instrumentalism in some form, including most notably in providing appropriate incentives to minimize the costs of accidents, as Guido Calabresi normatively proposed and William Landes and Richard Posner descriptively claimed? Or, on the other hand, is tort law simply about the injurer and victim and the just manner for allocating the victim’s loss—blind to any collateral consequences? We address these debates from our perspective as Restatement Reporters, honing in on the question of what role tort theory plays in our work. Our answer is virtually none. There are two independent and sufficient reasons for this conclusion. First, we are deeply skeptical that there an immanent meta-theory that explains tort law or guides its development. Instead, we think tort law is a hodgepodge, influenced by public policy, culture, administrative concerns, evidentiary lacunae, technological developments, and random events. These eclectic and shifting forces influence what tort law is and how it evolves with the felt needs of any given era. Tort law, in short, is built from the bottom up, not the top down and is far too messy to be the product of intelligent design. Beyond that, even if there were such a force at tort law’s heart, that force would still have little influence on our work. The doctrinal level at which Restatements operate and the case law that fuels the production of Restatements—ground level law—is a disjunction from theory, which operates at 30,000 feet. This disjunction means that the latter is of little assistance when it comes to addressing the quotidian matters important to tort law and Restatements. Whether tort law is entirely instrumental or solely about corrective justice cannot answer the question of whether parents should have immunity from tort suits by their children. The answer to that question must be found in the case law, not in Kant.

Courts are buckling under the weight of a staggering access-to-justice crisis. In three-quarters of cases, at least one side lacks a lawyer, default judgments are on the rise, and most Americans with valid claims never take legal action. The situation is dire, and it understandably has policymakers casting about for a fix. On the menu are a range of uncontroversial reform ideas, such as expanding legal aid, supporting system simplification, and promoting pro bono. But it is increasingly clear that those measures—even if accomplished—would not make a dent in the problem. Attention is thus turning to other reform ideas, such as relaxing unauthorized practice of law (UPL) rules and scrapping Model Rule 5.4(d), the provision that prevents nonlawyers from even partially owning entities that deliver legal services. Both reforms are promising. But both would dilute the longstanding lawyers’ monopoly. Perhaps not surprisingly, the bar is fighting these reforms tooth-and-nail. Into this roiling landscape, some now have a new idea: legal insurance. They suggest that legal insurance is the way to expand access to justice for middle- and working-class Americans. Reformers are also quick to point out that—unlike a relaxation of UPL restrictions or the abolition of Rule 5.4(d)—legal insurance stands to benefit lawyers. We have seen this play before. In the 1970s, the bar seized on legal insurance as a solution to what was then seen as an urgent access-to-justice crisis afflicting the middle-class. The movement garnered enthusiastic support, not just from the bar, but also from unions, states, Congress, private insurers, and consumer groups. For a time, legal insurance even took off. By the mid-1970s, there were reportedly 5,000 distinct plans in operation, and experts predicted that, by the mid-1980s, half of practicing lawyers would be participating. Of course, it didn’t come to pass—and remarkably, it seems the entire episode has been forgotten. This Article recovers the lost history of the country’s first experiment with legal insurance. In so doing, it seeks to forestall another false start. In addition, by drawing on a range of disciplines—including insurance law (particularly insights concerning moral hazard and adverse selection), behavioral economics, legal ethics, and the legal profession—this Article explains why the legal insurance idea floundered, and seems destined to flounder, going forward. It is undeniably seductive to think the access-to-justice crisis can be addressed in a way that benefits lawyers. It was seductive half-a-century ago. It is seductive now. But those who actually want to address the access-to-justice crisis need to look somewhere else.

Multidistrict litigation (MDL) has long been dogged by worries about illegitimate-or even fraudulent-claims. These claims, and public concern about them, damage the system; they erode confidence in judicial processes, increase costs, and contribute to rising caseloads. But while many have noted the problem, and some have even sought to address it, so far, judges' arsenals have been limited. Some judicial efforts (such as Lone Pine orders) amount to overkill: The entry of a Lone Pine order threatens to chill the vindication of important rights, not merely the initiation of bogus claims. Other efforts, such as plaintiff fact sheets and census orders, suffer from the opposite problem: Because they often lack teeth, these orders can encourage a game of judicial whack-a-mole, as some nonmeritorious claims may be rooted out even as more such claims are ushered in. Against that backdrop, we offer an innovative and practical solution to address this problem head-on. In particular, we explain how MDL transferee judges can harness common benefit fees to induce plaintiffs' lawyers to improve their screening practices, encouraging lawyers to cull invalid claims before they are filed. By assessing common benefit fees on a sliding scale, judges can financially reward those lawyers who meaningfully vet would-be clients-and penalize those who don't. Over time, through tailored and targeted efforts, judges can ensure that attorneys are properly incentivized to review the factual basis of suits while also keeping courts open to claims of uncertain-but-possible merit.