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Different Bells for Different Wethers: Random Sampling and Other Bellwether Selection Trends in Products Liability MDLs
No full textWhen the Judicial Panel on Multidistrict Litigation (JPML) transfers pools of thousands of similar cases pending in different districts to a single district court pursuant to 28 U.S.C. § 1407, the transferee judge needs a speedy and effective means of resolving these multidistrict litigations, or MDLs. Some MDLs, especially those involving products liability claims, are enormous, consisting of tens of thousands or even hundreds of thousands of claims. The MDL statute, however, limits the transferee court’s power to pretrial proceedings. Judges managing MDLs will promote settlement by fast-tracking several cases for trial, either in their own district (if they have jurisdiction) or by transferring these cases back to their district of origin. These fast-tracked cases are known as bellwether trials.
MDL procedures are governed by the MDL statute, the Federal Rules of Civil Procedure, and case law. Judges also have a great deal of discretion in structuring the bellwether trial procedure, and their approaches vary. Successful bellwether trial procedures are often copied by other MDL judges and become a form of “soft” precedent.
There are two dominant methods for selecting bellwether cases. The first method is selection by counsel, in which lawyers for the plaintiffs’ management committee and the defendant each pick the cases the judge will try. The second method is random sampling, in which cases are randomly selected for trial.
This Note presents an empirical review of judicial practices and finds that when judges have smaller case pools, they tend to allow counsel to select bellwether cases. When the case pool exceeds 10,000, judges will use modified random sampling to select bellwether cases. Evaluating the two methods, this Note argues that random sampling is the superior method and should be applied uniformly
Interagency Litigation Outside Article III
No full textFor over seventy years, the Supreme Court has said that a justiciable controversy can exist when one agency in the federal executive branch sues another. Although this raises intuitive concerns under both Article II (relating to presidential control) and Article III (relating to standing), scholars and judges have paid scant attention to the constitutional foundation for interagency litigation. Of those who have explored the topic, defenders and opponents alike agree on one thing: the foundation—or lack of one—depends on Article III’s case-or-controversy requirement.
That is mistaken. A better approach to understand interagency litigation is to step outside Article III and turn attention to Article I. When authorized by Congress, adjudicating interagency litigation is a function that a federal court can perform outside ordinary Article III justiciability rules because the resulting decision is not necessarily an exercise of the judicial power. The adjudication’s finality flows not from Article III, but from Congress’s providing a statutory decision rule that renders the court’s resolution conclusive of the litigated issues—a decision rule that the President must respect under Article II’s Take Care Clause. The central constitutional question is whether the Necessary and Proper Clause allows Congress to assign this function to federal courts. Significant historical practice suggests that it can.
This novel Article I theory of interagency litigation has many advantages over competing theories: it best explains existing cases; comports with text, history, and precedent on judicial independence; and gives due respect to all branches of government. It may also shed light on other current issues in administrative law, ranging from Chevron to remedies
Dystopian Trademark Revelations
No full textUncovering dystopian technologies is challenging. Nondisclosure agreements, procurement policies, trade secrets, and strategic obfuscation collude to shield the development and deployment of these technologies from public scrutiny until it is too late to combat them with law or policy. But occasionally, exposing dystopian technologies is simple. Corporations choose technology trademarks inspired by dystopian philosophies and novels or similar elements of real life—all warnings that their potential uses are dystopian as well. That pronouncement is not necessarily trumpeted on social media or corporate websites, however. It is revealed in a more surprising place: trademark registrations at the U.S. Patent and Trademark Office (USPTO).
To grant registrations, the USPTO demands detailed disclosures about applied-for trademarks. These include the mark itself as well as information about how the applicant will use the mark, forcing corporations to admit their intent for their technologies. But these details do not always provide the full picture. The public can strategically supplement trademark disclosures with knowledge of the dystopian inspiration for the marks to understand corporations’ plans for their products. This Essay uses the marks PALANTIR for big data analytics, PANOPTO for classroom recording systems, and MECHANICAL TURK for on-demand work to illustrate the power of coupling trademark registrations with underlying namesakes to understand technologies’ dystopian implementations. Dystopian trademarks signal dystopian technologies, and the public is well-positioned to seek them out and develop strategies to combat their entrenchment
Lee Pogonowski and the Art of Instruction
No full textThis essay concerns the educational legacy of Professor Lenore (Lee) Pogonowski, who passed away in early 2022 after a long career of teaching music education at Teachers College Columbia University. In this manuscript, I discuss the instructional design model that Lee Pogonowski called the “creative music strategy.” Her greatest achievement, most will agree, was her ability to inspire creativity while modeling the implementation of this instructional model. Pogonowski’s beliefs about the ineffability of the creative classroom aligned with her refusal to fix its instructional processes through the inherent linearity of the printed word. She did, however, leave her university students with many unpublished artifacts that reveal her commitment to creative, student-centered, open-ended, and critical approaches to teaching music. In this essay, I examine some of these artifacts and give context to their realization. There is an art to this kind of instructional design, I conclude, one that is mimetic of the very act of doing and making music. Lee inhabited the art of teaching, indeed instruction
The Extraordinary Legacy of Lee Pogonowski
No full textThis article is a memoir of the author’s experience studying music education at Teachers College Columbia University with Professor Lenore Pogonowski in the mid 1990s. The author completed four years of study at that institution earning an MA. Ed.M., and an Ed.D. He was also a teaching artist for the Creative Arts Laboratory, a US government funded program headed by Dr. Pogonowski, during that time. Professor Pogonowski had a profound impact on the author’s teaching practice during the ensuing decades. In his interactions with other music educators, he was surprised to learn how many of them were trained in a completely different paradigm. The author describes his own use of metacognition, critical thinking, and improvisation in the classroom
Prioritizing Proximity in Phasing Out Oil and Gas Extraction
No full textTo avoid the most catastrophic impacts of climate change, most of the world’s oil and gas reserves must remain in the ground. In the United States, this would require a dramatic phaseout of oil and gas extraction nationwide over the coming decades. How could we accomplish this? While recent legal scholarship emphasizes the importance of a just transition away from oil and gas extraction, little work has been done to navigate the legal, political, and equity hurdles associated with phasing out oil and gas extraction.
This Article seeks to start this conversation by offering one way to approach phaseouts of oil and gas extraction in the United States: prioritize phasing out extraction closest to people. This intuitive approach builds on the success of frontline communities in California and Colorado advocating for statewide setbacks that prioritize regulating oil and gas extraction closest to their communities. Among other virtues, this advocacy has successfully drawn the connection between the localized harms of oil and gas extraction on communities of color and low-income communities to the larger climate impacts of continued oil and gas extraction.
This Article argues that phaseout policies should follow these communities’ lead and articulates several priorities for doing so: (1) stopping new extraction closest to people, (2) monitoring continued extraction closest to people, (3) plugging and reclaiming wells closest to people, and (4) matching proximity-based phaseouts with decarbonization programs. This approach to managing the decline of oil and gas extraction in the United States places such policies on the strongest footing against legal challenges while also targeting the roots of political support for extraction by reducing local dependency and supporting communities that have borne the direct impacts of fossil fuel extraction
Evaluating Nondebtor Releases: How Purdue Pharma Emphasizes the Need for Congress to Resolve the Decades-Long Debate
No full textIn 2019, Purdue Pharma filed a petition for relief under Chapter 11 of the Bankruptcy Code (the “Code”) due to an onslaught of lawsuits arising from its alleged contribution to the opioid crisis. The proposed plan of reorganization became notorious for its release of the Sackler family––nondebtors–– from future civil liability relating to opioid litigation. For over 30 years, Federal Circuit Courts of Appeal have split on whether the Code allows release of nondebtors. A majority of circuits have recognized that the Code’s grant of broad, discretionary equitable powers authorizes nondebtor releases. The recent emergence of several mass-tort bankruptcies containing nondebtor releases has sparked a movement for Congress to expressly prohibit the practice. This legislation would negatively impact the practice of bankruptcy law by threatening claimants’ potential recovery and increasing the likelihood that corporations who could possibly reorganize through the use of nondebtor releases, will not be able to without their availability. This note argues that Congress should amend the Bankruptcy Code––specifically section 524(g)––beyond the asbestos context and explicitly allow for nondebtor releases in the mass-tort context
Paleoenvironments in Late Pleistocene Sicily
No full textThis thesis explores eleven archaeological sites on the island of Sicily to further understand the paleoenvironment of the island at the time of early human occupation. Utilizing faunal records, we have analyzed the indicator taxa at each site, conducted a habitat weighting analysis, and performed several multivariate tests to determine what the paleoenvironment of Late Pleistocene Sicily may have looked like. Based on the taxa that existed on the island during the Late Pleistocene, we have determined that Sicily likely had a temperate environment and contained habitats that are no longer abundant in the present day
Exploring Emotion Regulation and Social Support as Moderators of the Relationship between Sleep Disturbance and High Cortisol Levels in Cancer Survivors
No full textStress is a constant, ongoing occurrence in our lives, and research has given us further understanding of the health implications it has. Cortisol has been explored as a biomarker of stress, and high levels of it can lead to further health problems. Cancer is a life-changing disease and can have varying impacts on one’s emotional and physical health. Cancer diagnosis and treatment is a stressful experience, and stress is known to impact other aspects of health, such as sleep. The importance of sleep quality on our proper bodily functioning is well known. Given how essential sleep is to our health, a disruption in sleep may also be connected to stress levels, which also may impact our health. There are many different potential moderators that may influence the relationship between stress and sleep. Two moderators explored in this study are emotion regulation and social support. We studied cancer survivors, due to the particular challenges they experience during and after treatment.. This study sought to examine the moderating strength of emotion regulation and social support on the relationship between cortisol levels and sleep disturbance in cancer survivors. In this study, 576 participants who had been diagnosed with breast, prostate, or colorectal cancer completed questionnaires over five time points, over the course of a year, reporting psychosocial resources, coping, and multiple domains of wellbeing. Participants also provided hair and nail samples for cortisol measurements. Results did not show a relationship between cortisol and sleep disturbance. Results did not show that social support or emotion regulation were significant moderators of the relationship between cortisol and sleep disturbance in cancer survivors. Results did show that emotion regulation and social support were independently associated with sleep disturbance. The study showed that there are important factors related to cancer survivors’ health and well-being
21st Century Political Agronomy: Between Collapse and Apocalypse in the Capitalist World System
No full textExaminations of the causal chain between ecological impacts and food shortages reveal significant impending global disturbances. This paper draws a causal link between ecological impacts and low food productivity which will lead to food insecurity and economic crises in the near term. Further, this paper argues that food insecurity may lead to the collapse of the capitalist world system. This threat is contrasted with “business as usual” climate models which, rather than depicting the collapse of the capitalist world system, depict its persistence throughout the collapse of the world ecology