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Comment, Post-War Iraq: Prosecuting Saddam Hussein
Get PDFOn January 9, 2004, the United States officially declared Saddam Hussein a prisoner of war and indicated that it will turn him over to a special court established by the Iraqi Governing Council under the direction of the Coalition Provisional Authority. Yet, prosecution in this forum fails to ensure proof of guilt beyond a reasonable doubt as required by Article 14 of the International Covenant on Civil and Political Rights and does not prohibit the death penalty. Further, such prosecution requires the application of Iraqi criminal law and procedure where otherwise unarticulated in the statute creating it. This might allow Hussein to twist the laws he implemented to his advantage. Consequently, this Article focuses on alternative fora for jurisdiction over Hussein, recommends an ad hoc international criminal tribunal that does not provide for the death penalty, and examines Hussein\u27\u27s liability for genocide against the Kurds and crimes against humanity
MDL for the People
Get PDFBy the terms of its own statute and the limits of its constitutional authority, multidistrict litigation (“MDL”) is designed to transfer and coordinate individual lawsuits then return plaintiffs back to their chosen fora for case-specific discovery and trial. Because each plaintiff is present and has her own lawyer, there is no need for the judge to police conflicts of interest or attorney loyalty as in the MDL’s kin, the class action.
But these assumptions do not match the empirical reality. Remand is rare. MDL judges resolve ninety-nine percent of the cases before them. And to some attorneys, the people of MDL are just numbers on a spreadsheet, not clients with their own agency. In conducting this first-ever study of MDL plaintiffs, we explore their experience. By moving their cases far from home, courts and attorneys seem to say “trust us.” But knowledge is essential to trust, and study participants knew little about the status of their case, their judge, or even the identity of their attorney.
Three things were clear to participants. First, they were aware of how little they recovered. Second, from their perspective, justice had not been done. Only 1.8 percent felt their lawsuit accomplished what they hoped it would. And finally, participants wanted to be informed and involved.
To salvage MDLs, courts must empower plaintiffs through technology and transparency. Technology can open access to courts, bring plaintiffs into the process, and give them a voice without sacrificing MDL’s efficiencies. Creating online forums can cut through the layers of lawyers and allow plaintiffs to communicate directly with lead attorneys and each other. Armed with information and opportunity, plaintiffs can also hold attorneys accountable by evaluating them. Placing leadership performance reviews on court dockets and using them as a factor in awarding leaders’ common-benefit fees can give them weight while bringing organizational theory to bear on future leadership selections. Finally, disciplining and sanctioning individual lawyers for unethical conduct can disrupt neglect and improve the public’s faith in the system
Rhetoric or Rights?: When Culture and Religion Bar Girls\u27 Right to Education
Get PDFWomen account for almost two-thirds of the world\u27s illiterates. In the year 2000, the World Education Forum met in Dakar, Senegal and set goals to (1) eliminate gender disparities in primary and secondary education by 2005, and (2) achieve gender equality in education by 2015. Two months before 2004, the United Nations Educational, Scientific, and Cultural Organization (UNESCO) reported that sixty percent of the 128 countries that attended the Dakar Conference would not meet these goals. The report attributed the failure to sharp discrimination against girls in social and cultural practices.
The report failed to mention that social and cultural practices persist in many countries with high disparities because of the practices\u27 firm entrenchment in the Islamic religion. Islam is the dominant religion in the majority of countries with the highest levels of gender disparity in education in favor of boys. The report identified the causes of gender disparity as labor market inequalities, enduring stereotypes, cultural preference for sons, early marriage, early pregnancy, domestic labors, and HIV/AIDS. Although the report attributed disparity to social norms and traditional practices, it failed to acknowledge that these norms and practices are symptoms and manifestations of the same source: Islamic fundamentalism.
Because religion and culture cause the disparity, the United Nations\u27 organizations and many human rights groups opt to approach the situation with either carefully worded rhetoric or silence. These organizations implicitly consent to the cultural relativist position on human rights by remaining silent as well as by focusing their efforts on reporting violations committed against Islamic fundamentalists. As the founder of a dissonant female Muslim group noted, cultural relativism is the big threat, and everything can be tolerated in the name of culture. Only when fundamentalist groups seize power, as occurred with the Taliban in Afghanistan, do the United Nations and human rights groups report on violations committed by fundamentalists.
Deference to fundamentalists ignores the voices of dissension from Muslim female groups and prevents an effective campaign that identifies and targets religion as the root cause for educational disparity. For girls to realize their right to education, the international community must recognize and legitimize the voices of opposition, confront despotism in religion, encourage the eradication of biased gender roles regardless of their origin, and invest in innovative human rights education
Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation
No full textMass-tort lawsuits over products like pelvic and hernia mesh, Roundup, opioids, talcum powder, and hip implants consume a substantial part of the federal civil caseload. But multidistrict litigation, which federal courts use to package these individual tort suits into one proceeding, has not been extensively analyzed. In Mass Tort Deals, Elizabeth Chamblee Burch marshals a wide array of empirical data to suggest that a systematic lack of checks and balances in our courts may benefit everyone but the plaintiffs - the very people who are often unable to stand up for themselves. Rather than faithfully representing them, plaintiffs\u27 lawyers may sell them out in backroom settlements that compensate lawyers handsomely, pay plaintiffs little, and deny them the justice they seek. From diagnosis to reforms, Burch\u27s goal isn\u27t to eliminate these suits; it\u27s to save them. This book is a must read for concerned citizens, policymakers, lawyers, and judges alike.https://digitalcommons.law.uga.edu/books/1156/thumbnail.jp
Monopolies in Multidistrict Litigation
Get PDFWhen transferee judges receive a multidistrict proceeding, they select a few lead plaintiffs’ lawyers to efficiently manage litigation and settlement negotiations. That decision gives those attorneys total control over all consolidated plaintiffs’ claims and rewards them richly in common-benefit fees. It’s no surprise then that these are coveted positions, yet empirical evidence confirms that the same attorneys occupy them time and again. Anytime repeat players exist and exercise both oligopolistic leadership control across multidistrict proceedings and monopolistic power within a single proceeding, there is concern that they will use their dominance to enshrine practices and norms that benefit themselves at consumers’ (or here, clients’) expense. Apprehensiveness should increase when defense lawyers are repeat players too, as they are in multidistrict litigation. And anxiety may peak when the circumstances exhibit these anti-competitive characteristics, but lack regulation as they do here. Without the safeguards built into class certification, judicial monitoring and appellate checks disappear. What remains is a system that may permit lead lawyers to act, at times, like a cartel.Basic economic principles demonstrate that noncompetitive markets can result in higher prices and lower outputs, and agency costs chronicle ways in which unmonitored agents’ self-interest can lead them astray. By analyzing lead lawyers’ common-benefit fees, the non-class deals that they design, and the results they generate for their clients, this Article introduces new empirical evidence that multidistrict litigation is not immune to market or agency principles. It demonstrates that repeat players on both sides continually achieve their goals in tandem — defendants end massive suits and lead plaintiffs’ lawyers increase their common-benefit fees. But this exchange may result in lower payouts to plaintiffs, stricter evidentiary burdens in claims processing, or more coercive plaintiff-participation measures in master settlements.These circumstances warrant regulation. Even though judges entrench and enable repeat players, they are integral to the solution. By tinkering with selection and compensation methods and instilling automatic remands after leaders negotiate master settlements, judges can capitalize on competitive forces already in play. Tapping into the vibrant rivalries within the plaintiffs’ bar allows judges to use dynamic market solutions to remap the existing regulatory landscape by invigorating competition and playing to attorneys’ adversarial strengths
Bargaining in the Shadow of the Law: The Litigation Ruse
No full textPresentation of a chapter of Professor Burch\u27s forthcoming book, Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation
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Mass tort deals ::backroom bargaining in multidistrict litigation /
No full textMass-tort lawsuits over products like pelvic and hernia mesh, Roundup, opioids, talcum powder, and hip implants consume a substantial part of the federal civil caseload. But multidistrict litigation, which federal courts use to package these individual tort suits into one proceeding, has not been extensively analyzed. In Mass Tort Deals, Elizabeth Chamblee Burch marshals a wide array of empirical data to suggest that a systematic lack of checks and balances in our courts may benefit everyone but the plaintiffs - the very people who are often unable to stand up for themselves. Rather than faithfully representing them, plaintiffs' lawyers may sell them out in backroom settlements that compensate lawyers handsomely, pay plaintiffs little, and deny them the justice they seek. From diagnosis to reforms, Burch's goal isn't to eliminate these suits; it's to save them. This book is a must read for concerned citizens, policymakers, lawyers, and judges alike
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Diversity in MDL Leadership: A Field Guide
No full textMultidistrict litigation (MDL) includes some of the most high-profile torts of our day—opioids, talc, RoundUp, to name a few—but the attorneys who spearhead these proceedings often look a lot like they did fifty years ago: predominately white and predominately male.A debate has emerged over whether attorneys best positioned to fill MDL leadership roles are the grizzled repeat players who appear time and again—and who are largely white, older, and male—or newcomers with fresh ideas and energy who may not always look like their predecessors. And if diversity is important, what kind of diversity matters?In this short essay, I suggest that judges broaden their ideas about diversity to consider cognitive diversity--meaning different knowledge, skills, information, and tool kits. In selecting leaders, courts should consider conflicts of interest that are likely to emerge between plaintiffs and plaintiffs’ counsel, encourage dissent and the airing of minority viewpoints, and select leaders based on attorneys’ cognitive diversity.To be sure, there are a number of MDLs in which normative claims about representation, fairness, and social legitimacy can make identity diversity among leaders key—mass torts over trans-vaginal mesh, Mirena, Yasmin/Yaz, Essure, NuvaRing, and OrthoEvra all come to mind. Gender can matter where gender itself is an issue as it is in those proceedings.But identity diversity proponents often argue that diversity likewise improves outcomes. Here, studies are mixed, with some suggesting that when people perceive themselves as belonging to opposing groups, they may tune each other out and that those with privately held information may be less inclined to share it for fear of being mocked or socially ostracized. The evidence is more straightforward when researchers consider cognitive diversity. Cognitively diverse groups consistently see “bonuses” when group members perform disjunctive, nonroutine, thought-provoking tasks like brainstorming legal strategy or identifying which issues to appeal. And, as this essay explores, cognitive diversity and identity diversity can overlap
Calibrating Participation: Reflections on Procedure versus Procedural Justice
Get PDFWhen the same defendant harms many people in similar ways, a plaintiff’s ability to meaningfully participate in litigating her rights is curtailed dramatically. Now it is the rare plaintiff who sues a nationwide (or worldwide) corporation in her home jurisdiction and is able to litigate and resolve her claims there. Although several factors play a role in this phenomenon, including tort reform efforts like the Class Action Fairness Act, one of the most significant factors is Supreme Court jurisprudence over the last ten years in the areas of arbitration, personal jurisdiction, pleading, and class actions. Of course, recent cases aren’t the first evidence of a shift away from procedural justice norms. Commentators have long lamented the “vanishing trial” and the rise of summary judgment, often citing those trends as evidence of “merit-phobia,” “death by a thousand procedural cuts,” and a general demolition of both democratic tradition and the civil justice system’s credibility.At the heart of these concerns lies a persistent theme: the need for citizen access to and participation in convenient dispute resolution. Other scholars writing about arbitration, closing the courthouse doors, and the democratizing function of trials have already tackled many facets of this theme. Accordingly, this Essay, written for the annual Clifford Symposium in Tort Law and Social Policy, hones in on a slightly different aspect: securing and curtailing participation rights through both aggregating and pleading. It builds a framework for considering participation rights in aggregate litigation based on underlying substantive rights, group dynamics, and empirical studies on procedural justice
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