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Just Like Us: MDL Is Eating Weedkiller
Full text linkThe ingestion of an herbicide called glyphosate is currently unavoidable in America. It is the main ingredient of a consumer product called Roundup. People who regularly used Roundup have brought civil lawsuits against its manufacturer, Monsanto (now owned by Bayer), claiming Roundup caused their cancer diagnoses. Juries, particularly those in state courts, have awarded some plaintiffs massive damages awards. But jury trials elude most of the glyphosate plaintiffs who find themselves in federal court. There, the same can be said for nearly all products liability litigants. This is due to the procedure that has slowly come to dominate mass torts over the past fifty years: Multidistrict Litigation (MDL).
When many federal plaintiffs share similar claims, they are aggregated into an MDL overseen by a single federal district judge. The nuances between their claims are effectively dissolved. Their pretrial issues are decided en masse, and their cases are usually funneled into negotiated settlements. The thousands of plaintiffs in an MDL cannot choose the lawyers who negotiate these settlements, cannot appeal the decisions resulting from the MDL, and cannot opt out of the MDL once their suit is aggregated into one. This procedure is rationalized by both the efficacy it provides the courts and the leverage it gives plaintiffs by grouping them together. However, some scholars worry this procedure gives corporations like Bayer a bulk discount on damages and erodes hallmarks of litigant rights Americans have come to expect from their court system.
This Note addresses how MDL procedure has affected the path of glyphosate litigation so far. It also explores why America’s regulatory regime has not effectively addressed glyphosate’s potential toxicity, leaving mass tort litigation as the main engine of progress on the issue. It explores theories of how mass tort litigation can affect regulation and juxtaposes those theories against the reality of MDL procedure. It parses out the differences between MDLs and Class Actions and describes how the former has come to dominate aggregated litigation. Furthermore, this Note describes concerted efforts to reform herbicide law to disallow plaintiffs from keeping their claims in state courts, as well as efforts to preempt and disallow federal claims of glyphosate litigants. Finally, it describes potential reforms to MDLs which could address scholars’ most damning critiques and evaluates the glyphosate MDL in light of the procedure’s worst-case scenarios
The Craze for Legal Proceedings : Another Look at \u3ci\u3eSchloendorff v. New York Hospital\u3c/i\u3e
No full textIn 1914, Judge Benjamin Cardozo wrote an appellate decision in the case of Schloendorff v. Society of the New York Hospital containing the assertion, “Every human being of adult years and sound mind has a right to determine what shall be done to his own body.” This quotation later became a touchstone for discussions of the principle of informed consent. Previous scholarship has questioned the use of Schloendorff as a byword of patient self-determination, but more recently discovered records suggest yet another way to understand the famous case. Material from the archive of the New York Hospital--where Mary Schloendorff\u27s surgery took place--demonstrates that her testimony was almost certainly true: she did not give consent to the surgery that led to her injuries. Yet fully aware of these facts, hospital officials followed a policy, by then more than thirty years old, to deny all liability and litigate all malpractice claims rather than admit fault and compensate injured patients. This paper explores a new perspective on Schloendorff. We should understand the case as an important, albeit early, skirmish in the 20th Century medical malpractice wars. Calls by medical societies to block access to court for injured patients were commonplace even before Schloendorff, and early proposals for what is currently termed “tort reform,” predate it as well. The defense strategy of routinely denying liability and refusing to compensate patient injuries regardless of how they were caused was a well-established practice at the New York Hospital even in 1914. Current campaigns to further limit patient access to courts often echo century-old policies designed to avoid responsibility for medical errors
Sex and Control in Redeemer Georgia
No full textThis Essay explores the interplay of history, law, and morality behind the first abortion law in Georgia. Examining the philosophical underpinnings of liberty and equality as articulated in Georgia\u27s constitutional history through time, this Essay highlights the moral contradictions inherent in the legal frameworks of Reconstruction Georgia. The origin of Georgia\u27s 1876 abortion law contains multitudes--rooted in race-based contestations for political power, the sociological evolution of medical practice, and evolving attitudes on individual rights. At times, White elites used abortion to attack Yankee culture and stir up racist fears about moral contagion associated with Radical Republicans. To this end, when read against political time, the campaign to regulate motherhood and criminalize reproductive choice was not simply grounded in morality claims about protecting fetal life--a significant theme in the mid-nineteenth century campaign against abortion nationally--but also about enforcing other race and sex crimes and controlling the freedperson labor force in an era of political uncertainty and constitutional upheaval. Abortion surfaced as a political issue in Georgia at a time and in a manner that makes it inextricably linked to the politics of Reconstruction and Redemption
Revisiting Reasonable Cybersecurity
No full textProspective theories of cybersecurity liability have traveled over some well-worn paths over the past three decades, resulting in some successes, but also in at least as many cul-de-sacs and dead ends. Part of this problem can be found in the difficulty and complexity of the subject itself. Courts, legislators, and regulators all face comprehension difficulties when they attempt to fit our existing legal system around cybersecurity, often resulting in half-measures and generalized solutions that are challenging to apply to the widely different technical details behind each case. And in the background, we have a general reluctance to create legal regimes that might unnecessarily hinder the technology industry. The resulting legal landscape for cybersecurity is an incoherent and ineffectual mess. But as our political, military, economic, infrastructural, and social systems continue to increase their dependency on potentially insecure software and hardware, our timidity and indecision around cybersecurity liability incurs greater real-world harms. Because of our muddled and incomplete cybersecurity legal frameworks, the associated costs are not necessarily borne by the appropriate or most culpable parties. The gaps in our current legal and regulatory frameworks make it next to impossible to consistently and reliably apportion damages or apply incentives and reduce cybersecurity policies to a series of wish lists. This Article means to advance the cybersecurity liability conversation by taking another look at what are considered “reasonable” cybersecurity practices informed by current accepted frameworks, regulatory decisions, case law, policy goals, and other lessons learned. The Article will rely heavily on common law standards of reasonableness, but will also look to standards used within other legal theories and policy frameworks. This Article borrows useful components of *998 reasonableness from an array of sources to derive a test to assess the reasonableness of cybersecurity-related actions and choices. This test is meant to provide a flexible standard that is technically grounded, empirically precise, yet accessible enough for courts and lawmakers to fairly apply to cybersecurity cases that are sure to present new challenges as our technologies continue to evolve
Property - Landlord and Tenant
Full text linkThe Act serves to increase protections for tenants of residential properties in Georgia. Also known as the “Safe at Home Act,” the Act’s main provision requires that all rental residences are fit for human habitation. Additionally, the Act sets a maximum amount for security deposits and gives a tenant that is late on a rental or utility payment three additional days before a landlord may petition a court for an eviction
