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Oy! Don’t bother!

We’re scouring the web for stuff in the scholarly literature that might interest practitioners in our field, and we’re coming up awfully close to empty.

We’re posting below portions of the abstracts — do we save you time, or what? — of the most interesting three recent articles we found. And you might still be better off clicking away right now.

First, Jason Miller posted at SSRN his student note, “When and How To Defer to the FDA: Learning From Michigan’s Regulatory Compliance Defense.” Michigan, of course, has an absolute statutory bar to liability for drugs that the FDA approved. Miller’s take on how to improve that system is to maintain the bar on private tort actions, but authorize state attorneys general to pursue certain claims. In the words of part of the abstract:

“This Note examines the question of FDA approval in state tort actions, discusses Michigan’s answer to that question, and offers a proposal that would block most private actions against FDA-approved drugs (as Michigan has done), but would allow a state attorney general to bring suits in certain circumstances. The state attorney general model detailed in this Note stakes out a middle ground in the debate over the significance of FDA approval. The proposal recognizes the primacy of the FDA, but also recognizes the need for a back-up that can provide deterrence and compensation in the few cases that slip through the FDA’s regulatory cracks.”

We’d love to see the legislative battle in Michigan when someone offers up that statutory revision. Nice thought, Jason, but it’s hard for practitioners to get too worked up about this.

Next up is Elizabeth Chamblee Burch (of Florida State) with a reaction to Judge Weinstein’s recent article about managing mass torts. (You can read our reaction to Judge Weinstein’s piece here.) We take it that Professor Burch has a longer article in the Alabama Law Review that discusses how to bring mass tort plaintiffs together to pursue their group interests more effectively, and her short piece in Cardozo Law Review’s de novo rehashes [I bet she won’t like that word] the Alabama ditty. But it does. “A New Way Forward: A Response to Judge Weinstein

“provides a condensed version of my earlier article, Litigating Groups, which analyzes group dynamics within nonclass aggregation. By drawing on the literature of moral and political philosophy as well as social psychology, I contend that, in the face of hard cases, of instability and disunity, plaintiffs who have made promises and assurances to one another can invoke social norms of promise-keeping, social agglomeration, compatibility, and the desire for means-end coherence to achieve consensus, mitigate client-client conflicts, and re-tether their attorney to their needs. Thus, using groups to overcome the problems in nonclass aggregation not only makes sense from a group responsibility perspective, it may also harmonize with wealth maximization and individual autonomy goals.”

Maybe society’ll get there, but not during our litigating lives.


You’ll just love “Responsibility and the Negligence Standard” by Joseph Raz. Here’s the entire abstract. (It’s awfully short, and we don’t really understand what it means anyway, so we can’t condense it further.)

“The paper has dual aim: to analyse the structure of negligence, and to use it to offer an explanation of responsibility (for actions, omissions, consequences) in terms of the relations which must exist between the action (omission, etc.) and the agents powers of rational agency if the agent is responsible for the action. The discussion involves reflections on the relations between the law and the morality of negligence, the difference between negligence and strict liability, the role of excuses and the grounds of duties to pay damages.”

(That’s all his spelling and syntax. We just cut and pasted those words from SSRN, so don’t blame us.)

Our occasional forays into academia don’t give us much hope.

We’re probably damning ourselves with faint praise here, but we’ll do it anyway: Compared to the average practitioner, we’re relatively academically curious guys.

But despite our [marginal] interest in the world of scholarship, we still can’t get worked up about most of the stuff we find there.

We’ll keep plugging along, so at least our readers have a sense of what the academy is producing.

We hope you’re enjoying these posts; that would make one of us.