We’ve stumbled across a few law review articles recently.

We know and bemoan (as do many scholars and most practitioners) that practicing lawyers don’t actually read the law reviews these days. We thought we’d share with you the gist of a few recent offerings, so that you could take a look if anything grabs your eye.

First, Gideon Parchomovsky and Alex Stein have posted their forthcoming article in the Michigan Law Review, “Torts and Innovation.” The professors argue that tort liability for negligence, product liability, and medical malpractice is assessed by looking at custom. By looking backwards — to custom and existing technologies — to judge liability, the law discourages innovators and subsidizes replicators of existing technologies. To solve this problem, the professors propose, among other things, to deem industry customs to be irrelevant in product liability cases.

We have some qualms about that – because tort law is supposed to be “backward looking” – that’s what “due care” is. And, as a practical matter, to the extent that industry custom is dictated by the government, we think compliance should be a defense, and certainly not irrelevant.

To calm people who, like us, are concerned about the strong-form of their proposal, Parchomovsky and Stein have an alternative. They suggest keeping the custom rules and creating special boards of industry experts to designate some innovations that have a privileged status equal to custom. We have mixed feelings about this. On the one hand, if we want the economy to remain vibrant and society to benefit from advances in science, we surely should not implement rules of tort law that discourage innovation. On the other hand, we always get nervous when people start proposing to use tort law as a vehicle for social change.

Second, Frank McClellan analyzes the Vioxx litigation in a recent issue of the Depaul Law Review. Here’s a link to “The Vioxx Litigation: A Critical look at Trial Tactics, the Tort System, and the Roles of Lawyers in Mass Tort litigation.” We’re less impressed with this than we are with the Parchomovsky and Stein piece. McClellan argues that the mass tort litigation process is inefficient and expensive. (Film at 11!) But he then lays the blame for this on defendants, and suggests that the solution is to pass “a rule or statute that subjects defendants to a monetary penalty, such as treble damages” for insisting that they’re going to try every case.

How many ways do we disagree with McClellan? Let us count the ways:

First, at the time McClellan’s article went to press, the 14 Vioxx trials had “resulted in nine wins for Merck and five wins for plaintiffs.” Article at 510. But two of those plaintiffs’ verdicts were later reversed on appeal. Is it really unreasonable to refuse to settle cases that a defendant is overwhelmingly likely to win at trial?

Second, as Ted Frank has explained elsewhere, empirical analysis suggests the plaintiffs’ Vioxx cases were weak. Why should the rules threaten only defendants, and not plaintiffs, with sanctions for taking aggressive settlement positions?

Third, as most observers of complex litigation agree, one real problem with the current system for adjudicating mass torts is that lawyers file claims on behalf of plaintiffs who never ingested the defendant’s product, never suffered any injury, or have only the most implausible ‘proof’ of causation. (We’re thinking of the caryrover paragraph between pages 3 and 4, but the whole letter is worth a read.) Wouldn’t the system be improved by figuring out a way to separate the wheat from the chaff, rather than trying to coerce defendants to settle?

Fourth, McClellan ignores the overall strategic pressures that defendants face in mass torts. If defendants pay large settlements in early cases, they simply chum the waters, encouraging plaintiffs’ counsel to file more lawsuits. If, instead, defendants defend the early cases aggressively, defendants may be able to discourage the filing of more cases, await the running of the statute of limitations, and then settle on reasonable terms. Do we really want to pass rules or statutes that prevent defendants from acting rationally?

We could go on in this vein, but we’re getting apoplectic. We’ll move on to a third, and last, recent law review article.

Lance McMillan has posted on SSRN “The Nuisance Settlement ‘Problem’: The Elusive Truth and A Clarifying Proposal.” The piece of the abstract that we like is this:

“Ultimately, whether a particular plaintiff intends to abuse the legal system by filing a meritless claim comes down to this inquiry: what did the plaintiff know and when did the plaintiff know it? To aid in answering this question, this Article proposes a five-part test for determining nuisance intent. The test focuses the nuisance analysis on how a plaintiff acts to determine what that plaintiff actually believes. It is not enough to look at the face of a complaint and try to divine conclusions about the plaintiff’s state of mind. Something more is needed. The test I propose aims to provide that something more. On the deterrence side, I then propose the Nuisance Litigation Sanctions Act, which combines the nuisance intent test with a number of small but important procedural changes designed to heighten the ability of defendants to seek relief against nuisance filings.”

Now that’s a breath of fresh air.