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Symposium Transcript, In re Opioid Litigation: The Pretrial Phase
Full text linkIn October 2023, Touro Law Center held a two-day conference on “The Past and Future of Opioid Litigation.” The inspiration for the conference was an extraordinary five-month jury trial in Suffolk County presided over by Hon. Jerry Garguilo. The trial, which was the first in the United States to include all parties in the pharmaceutical supply chain, from manufacturers to wholesale distributors to retail sellers, began in the summer of 2021. As Touro Law Dean Elena Langan notes in her introductory remarks below, because of the pandemic, the trial began and continued for a period of time in the auditorium of the law school. Ultimately, in 2022, the case settled. This allowed Judge Garguilo and attorneys from the case – Jayne Conroy, who represented one of the plaintiffs, Suffolk County, and Harvey Bartle, who represented one of the defendants, Teva Pharmaceuticals – to discuss the case in detail. Associate Dean Rodger Citron moderated two 90-minute panel sessions with Judge Garguilo and the attorneys. In the first, the panelists discussed the pretrial phase, which lasted for years and required extensive coordination between the court and the attorneys and the attorneys themselves. The transcript was prepared by Associate Dean Citron and reviewed by Judge Garguilo, Ms. Conroy, and Mr. Bartle. Edits were made for clarity along the way
Sharing the Tuna Platter: A Uniform System of Assessment for Clinical Education
Full text linkLegal education’s current methods for the measurement of student achievement in clinics, and the measurement of a clinic course’s effectiveness, are often unsatisfying, unreliable, and incomplete. This article presents a methodology for uniform and integrated systems of assessment across clinical programs that can provide more reliable evaluation of student progress and achievement, and better feedback to clinical programs on their effectiveness. It also shares how Touro University Jacob D. Fuchsberg Law Center’s Clinical Program applied these strategies with both success and challenges
Tort Law as a Remedy for Terrorism
No full textThis article examines two basic questions. First, can tort law suits against operatives in various circles of the world of terrorism be added to the toolkit of deterrence? Second, assuming that the answer to the first question is in the affirmative, how can tort law be structured to effectively deter terror operatives? With respect to the first question, despite the intuitive assumption that the relevant branches of the law in such cases are criminal, international, and counter-terrorism law rather than the various branches of private law, this article argues that tort law is capable of serving as a significant deterrent in the fight against terrorism. The Article presents three ways in which this can be accomplished: (a) imposing significant restitution on the operatives engaged in various aspects of terrorist activities; (b) exposing and identifying terror operatives by means of tort law action; and (c) initiating legal proceedings to raise awareness, exert public pressure, and cause reputational damage. Following this analysis, the Article examines the second basic question, explaining how tort law can be structured to create effective deterrence for perpetrators of terrorism. The Article sets forth preliminary guidelines for a comprehensive tort law system based on six pillars: (a) granting extra-territorial jurisdiction to countries that are fighting terrorism; (b) extension of the boundaries of tortious liability; (c) restructuring the rules of evidence and liability in civil proceedings; (d) creating effective mechanisms for collecting the restitution imposed on tortfeasors; (e) the establishment of statutory compensation funds; and (f) strengthening international legal cooperation. In this way, tort law can serve the interests of both injured parties and the public. This article concludes that even if tort law does not provide complete deterrence and even if the goal of deterrence is not easily achievable, it can make an important contribution to deterring terroris
Litigation, Reform, and the Opioid Crisis: From MDL to Bankruptcy
Full text linkCan bankruptcy solve a public health crisis? Bankruptcy has taken center stage in complex civil litigation, and the massive opioid litigation is no exception. The U.S. Supreme Court in 2024 decided its first recent case about the intersection of bankruptcy and modern public harms litigation in Harrington v. Purdue Pharma L.P., a decision that brought to the fore pressing questions about the increasing use of bankruptcy in mass torts. In raising concerns about bankruptcy courts being used as a “roving commission to solve all such problems” in complex civil litigation,” the case potentially signals the Court’s growing discomfort with creative uses of bankruptcy as an off-ramp to public harms litigation in the name of settlement. The significance of these developments is not limited to Purdue or even to the opioid litigation. From Purdue to other opioid manufacturers like Mallinckrodt to the Boy Scouts of America, the Catholic Church, and Revlon, we are seeing a surprising number of defendants in cases involving all kinds of public harm claiming they need to file for bankruptcy, even without being in financial distress, as an answer to the demands put on them by the mass tort system. Turning toward such “unorthodox civil procedure” is nothing new. Even before the Purdue bankruptcy, the massive federal opioid consolidated litigation itself—the “multidistrict litigation” (“MDL”)—was a prime example of procedural unorthodoxy, as was the parallel New York State opioid trial that is the subject of this symposium. The question now is whether bankruptcy has more to offer the parties than these other forms of creative and complex aggregate litigation and, if so, what might be lost from increasingly unorthodox deviations from the traditional litigation model
Celebrity Trademark Overload: The Rising Issue of Excessive Registrations and Reverse Confusion
No full textCelebrities use trademark law not only to protect their brands, but also to stake claims on a vast range of potential marks through intent to use (“ITU”) applications—often before any real commercial plan exists. This practice allows celebrities to reserve rights ranging from viral catchphrases to their children’s names which crowds the trademark register, delays legitimate filings by smaller businesses, and forces challengers into costly legal battles. A separate but equally troubling issue arises when a celebrity’s brand overshadows a preexisting weaker mark. In “reverse confusion” cases, courts often focus on whether the celebrity acted willfully, ignoring the fact that immense profits and consumer confusion can occur without malicious intent. The emphasis on intent overlooks the fact that celebrities can reap enormous profits and erase a smaller brand’s identity without ever intending to cause harm. Collectively, the lenient standards governing ITU applications and the inconsistent remedies applied in reverse confusion cases facilitate celebrity overreach, undermining fair competition and diminishing the integrity of trademark la
“In Defiance of Gifts”: The Dutch Origins of the Foreign Emoluments Clause
Full text linkStarting in 2017, a series of lawsuits against President Donald Trump grounded their arguments on a long-overlooked portion of the Constitution: the Foreign Emoluments Clause, which in its most basic form bans government officials from accepting gifts, or “emoluments,” from foreign entities. Until 2017, few courts or scholars had ever scrutinized this provision. But with Trump’s presidency and enduring reports of his foreign business dealings, this oft-shunned area of the law suddenly garnered the attention of courts and scholars alike. Because of a clear “lack of precedent” on this matter, federal judges soon parsed historical records to determine the Clause’s meaning. Their attempts resulted in a split among circuits and left open a series of questions about the Clause’s meaning. But one critical yet surprising source remained largely unmentioned: Dutch law. While some secondary sources intimate that a 1651 Dutch law may be the “likely” or “apparent” source of the Clause, no scholarship has attempted to substantiate this claim or analyze this potential source material. In bridging this gap, this article seeks to add a new historical perspective to this growing area of constitutional scholarship. It argues that the Framers first discovered this legal concept and its precise wording in the annals of Dutch law and, as such, Dutch law can serve as a critical source of understanding for the Clause. In so doing, this article will begin with a study of federal case law decided under the Clause and the importance these cases place on discerning its history. It will then turn to the origins of the Clause to understand how the Framers first discovered this legal concept in a 1651 Dutch statute and 1737 Dutch treatise, illustrating Dutch law’s influence on the Clause. Lastly, by conducting a robust textual analysis of the 1651 law and its interpretations through contemporaneous treatises and other surviving records, it will analyze how the Clause’s Dutch origins serve as a critical source of understanding for its meaning today. In all, this unexplored area of legal history will answer lingering questions about the Clause’s application and bear relevant implications on the scope of presidential powers today