CIVIL PROCEDURE

Complex Litigation: Statutory Recommendations and Analysis

xxx, 592 pp., 1994, Order Code 5472, Was $115. NOW $60.   -- Order this item

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In response to the proliferation in recent years of complex litigation cases and the myriad issues they raise, Complex Litigation: Statutory Recommendations and Analysis provides a timely and valuable resource for practitioners involved with the problems presented by complex litigation as it exists today, as well as for those concerned with developing a more just, fair, and efficient system for dealing with complex cases.

The work responds to the phenomenon of multiparty, multi-forum lawsuits—litigation that often includes a multiplicity of individual actions arising out of the same transaction or course of conduct but prosecuted in different forums—and offers innovative proposals for mitigating the difficulties these cases pose. Such litigation, examples of which include mass products liability litigation (such as the asbestos and Dalkon Shield cases), common disaster cases (such as commercial airliner crashes and hotel fires), and certain kinds of contract and commercial cases, involves extraordinary burdens on the court systems, both federal and state; high "transaction costs" in the form of lawyer’s fees and related expenses; and serious risk of inconsistent dispositions of claims by claimants who are similarly situated.

The text proposes thoughtfully articulated and detailed solutions to problems such as these: What, in precise terms, should be included in the category of "complex litigation"?; Who should decide whether consolidation is appropriate and, if so, on what terms?; What procedure should govern such decisions, and who should participate?; Is it ever appropriate that cases brought in federal court be remanded out of the federal system?; Should cases otherwise not removable from state to federal court be eligible for removal because they involve issues in common with a number of similar cases?; What should be the standards governing choice of law when a transfer, according to one or another procedural mechanism, would or might call for application of different law than would have governed if the case remained where it was commenced? In addition, the extensive and fully documented Reporter’s Notes are excellent starting points for further research into the issues addressed.

The volume contains six Chapters and three Appendices:

Chapter 1 introduces the project, provides background information, and defines the scope of the project. A glossary of terms is also included.

Chapter 2 sets forth the problems posed by complex litigation and provides a description of the history of such litigation. It discusses the costs of duplicative litigation and considers the balancing of disparate values needed for effective consolidation.

Chapter 3 discusses the appropriate standard for federal intrasystem consolidation and presents various proposals to facilitate the transfer and consolidation of related civil actions brought in two or more federal courts.

Chapter 4 examines ways of facilitating the coordination, and possibly the consolidation, of related cases in state courts. It proposes that cases in a very limited set of circumstances be allowed to be transferred from federal to state court for purposes of consolidated treatment with other cases lodged there, and that an interstate compact, or possibly a uniform state statute, be designed to provide a procedural structure and authorization for the coordination, transfer, and consolidation of cases among courts of various states. The Chapter is supplemented, in Appendix B, by a Reporter’s Study setting forth a model system for state-to-state transfer and consolidation.

Chapter 5 addresses federal and state courts handling related or overlapping litigation units that might be treated more efficiently and fairly in a single consolidated, or partially consolidated, complex federal proceeding. It explores ways to facilitate the movement of related cases from the state to the federal courts, as well as procedural mechanisms to foster judicial economy when suits remain dispersed in both court systems.

Chapter 6 includes a comprehensive proposal for a federal statutory choice of law code to be applied to cases transferred and consolidated in the federal courts under the procedures set forth in earlier Chapters. Cases consolidated in state courts under Chapter 4 would not be governed by this code.

In order to effectuate many, if not most, of the proposals set forth in this work, congressional enactment of a comprehensive complex litigation statute is necessary. Thus, Appendix A sets forth a proposed Complex Litigation Statute showing how the principles presented in the text might be implemented in statutory form.

Appendix B, a Reporter’s Study, included for purposes of information and discussion, consists of a draft proposal for a procedure by which to effectuate transfer of cases, in a complex litigation setting, among state court systems.

Appendix C, included for comparison, is the full text of the Uniform Transfer of Litigation Act proposed by the National Conference of Commissioners on Uniform State Laws.

Reporters: Arthur R. Miller, Harvard University Law School, Cambridge, Massachusetts; Mary Kay Kane, University of California, Hastings College of the Law, San Francisco, California.

Advisers: Herbert P. Wilkins, Justice, Supreme Judicial Court of Massachusetts, Boston, Massachusetts, Chair; Sheila L. Birnbaum, New York, New York; Bennett Boskey, Washington, District of Columbia; Edward H. Cooper, University of Michigan Law School, Ann Arbor, Michigan; Samuel S. Freedman, Judge, Connecticut Superior Court, Bridgeport, Connecticut; Ruth Bader Ginsburg, Judge, United States Court of Appeals for the District of Columbia Circuit, Washington, District of Columbia; David R. Gross, Short Hills, New Jersey; Patrick E. Higginbotham, Judge, United States Court of Appeals for the Fifth Circuit, Dallas, Texas; Joseph P. Klock, Jr., Miami, Florida [from 1991]; Pierre N. Leval, Judge, United States District Court for the Southern District of New York, New York, New York; Donald W. Madole, Washington, District of Columbia; Francis E. McGovern, The University of Alabama School of Law, Tuscaloosa, Alabama; Stephen L. Morris, Las Vegas, Nevada; John M. Newman, Jr., Cleveland, Ohio; William R. Peterson, Judge, Twenty-eighth Judicial Circuit, State of Michigan, Cadillac, Michigan [Deceased 1993]; Sam C. Pointer, Jr., Chief Judge, United States District Court for the Northern District of Alabama, Birmingham, Alabama; Thomas D. Rowe, Jr., Duke University School of Law, Durham, North Carolina; Marvin Schwartz, New York, New York [from 1991]; William W Schwarzer, Director, Federal Judicial Center, Washington, District of Columbia; David L. Shapiro, Harvard University Law School, Cambridge, Massachusetts; Herbert M. Wachtell, New York, New York; Jack B. Weinstein, Judge, United States District Court for the Eastern District of New York, Brooklyn, New York [from 1990].

State Court Judges Advisory Committee: Stanley G. Feldman, Vice Chief Justice, Supreme Court of Arizona, Phoenix, Arizona; Joseph H. H. Kaplan, Administrative Judge, Circuit Court for Baltimore City, Baltimore, Maryland; J. Charles Thompson, Judge, District Court, Eighth Judicial Circuit, Las Vegas, Nevada.

Tentative and Other Annual Meeting Drafts

Tentative Draft No. 1: Chapter 1. Introduction and Scope of the Complex Litigation Project; Chapter 2. The Problem of Complex Litigation; Chapter 3. Federal Intrasystem Consolidation; Appendix. Draft of Complex Litigation Statute xviii, 242 pp., 1989, Order Code 5976, $35 -- Order this item

Tentative Draft No. 2: Chapter 3. Revised Statute for Federal Intrasystem Consolidation; Chapter 5. Federal-State Intersystem Consolidation; Statute for Federal-State Intersystem Consolidation xix, 152 pp., 1990, and Reporters’ Preliminary Memorandum on Chapter 6: Choice of Law in Complex Actions xi, 16 pp., 1990, Order Code 5986K, $25 -- Order this item

Tentative Draft No. 3: Chapter 4. Consolidation in State Courts; Chapter 6. Choice of Law; Appendix A. Reporter’s Study: A Model System for State to State Transfer and Consolidation; Appendix B. Uniform Transfer of Litigation Act xxviii, 390 pp., 1992, Order Code 5378, $40 -- Order this item

Proposed Final Draft: Chapter 1. Introduction and Scope of the Complex Litigation Project; Chapter 2. The Problem of Complex Litigation; Chapter 3. Federal Intrasystem Consolidation; Chapter 4. Consolidation in State Courts; Chapter 5. Federal-State Intersystem Consolidation; Chapter 6. Choice of Law; Appendix A. Complex Litigation Statute; Appendix B. A Model System for State to State Transfer and Consolidation; Appendix C. Uniform Transfer of Litigation Act xxxviii, 716 pp., 1993, Order Code 5430, $60 -- Order this item

Preliminary Study of Complex Litigation: Chapter I. Introduction; Chapter II. Definition and Analysis of the Complex Litigation Problem; Chapter III. Objectives in Handling Complex Litigation; Chapter IV. Existing Mechanisms for Processing Complex Litigation; Chapter V. Gathering for Common Adjudication: Actions Dispersed Among Federal Courts; Chapter VI. Intersystem Gathering; Chapter VII. Application of a Single Governing Law; Chapter VIII. Former Adjudication; Chapter IX. Federal Omnibus Complex Litigation Legislation; Conclusions and Recommendations xiv, 241 pp., 1987, Order Code 5856, $25 -- Order this item

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Reporter: Arthur R. Miller, Harvard University Law School, Cambridge, Massachusetts.

Advisers: Herbert F. Wilkins, Justice, Supreme Judicial Court of Massachusetts, Boston, Massachusetts, Chair; Thomas D. Barr, New York, New York; Emmet J. Bondurant II, Atlanta, Georgia; Bennett Boskey, Washington, District of Columbia; Edward H. Cooper, University of Michigan Law School, Ann Arbor, Michigan; Ruth Bader Ginsburg, Judge, United States Court of Appeals for the District of Columbia Circuit, Washington, District of Columbia; Pierre N. Leval, Judge, United States District Court for the Southern District of New York, New York, New York; A. Leo Levin, University of Pennsylvania Law School, Philadelphia, Pennsylvania; Donald W. Madole, Washington, District of Columbia; Stephen L. Morris, Las Vegas, Nevada; Samuel W. Murphy, Jr., New York, New York; J. Vernon Patrick, Jr., Birmingham, Alabama; William R. Peterson, Judge, Twenty-eighth Judicial Circuit, State of Michigan, Cadillac, Michigan; Sam C. Pointer, Jr., Judge, United States District Court for the Northern District of Alabama, Birmingham, Alabama; Thomas D. Rowe, Jr., Duke University School of Law, Durham, North Carolina; William W Schwarzer, Judge, United States District Court for the Northern District of California, San Francisco, California; H. Blair White, Chicago, Illinois.