January 2001 Archives

"Aggregative" litigation, including class actions and mass consolidation, poses special ethical dangers of exploitation of clients by their lawyers, as well as the risk of a coercive effect on defendants which may feel reluctant to "bet the company" by going to trial. With special attention to asbestos litigation, Prof. Brickman finds that courts have fallen far short of what is needed to curb systemic abuse of mass tort and class action suits, and have tended to insulate attorneys from liability for even egregious misconduct in such cases.

The states' legal campaign against the tobacco industry, and the resulting 1998 settlement, rank among the most catastrophic developments of the twentieth century in American public law. It is not too late for legislators and voters to undo some of the worst mischief to result from the affair.

In a brilliant though little-noted litigation campaign, the organized plaintiff's bar has persuaded state supreme courts to strike down hundreds of legislatively enacted tort reforms, often by resorting to highly strained readings of state constitutions. Among the losers from the trend: the people�s right to govern itself democratically.

In the tobacco litigation, state attorneys general entered a remarkable partnership with private contingency-fee counsel, in which it was sometimes hard to distinguish who was the senior partner. The result was a form of privatization in which quintessentially public law enforcement authority was put in the hands of influential private counsel who in turn cashed it in for billions of dollars in fees.