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Professional Development Sample Proposal

Sample Proposal
The following proposal was submitted in 2001 by Professor Stephen Gilles of Quinnipiac University School of Law and Professor Benjamin Zipursky of Fordham University School of Law. The Professional Development Committee considers it a sample of a well-developed professional development proposal.


AALS Professional Development Program Proposal

The Judge's New Robes:
Rethinking the Judicial Role for 21st Century Torts

I. Proposal Summary The torts landscape is changing rapidly, not only at the level of doctrine, but in terms of the interplay between the legal institutions of counsel, jury, judge, agency, and legislature. At the center of the storm are state and federal judges. It is judges who must heed and apply Supreme Court decisions that impose limits on their ability to aggregate claims, and also direct them to screen expert testimony and develop a federal common law of punitive damages. It is also judges who must actively oversee the discovery process to ensure thorough disclosure while preventing fishing expeditions and interference with trade secrets. It is judges who must consider the latest Restatement analysis of the protean concept of proximate cause. It is judges who must determine, in the end, whether federal law preempts state tort causes of action, and whether state tort reform violates state constitutional protections of the right to court access and jury trials.

The proposal that follows this introduction suggests nine panels over the course of three days that approach from different angles the issue of the judge's institutional role in 21st century tort litigation. As the panel descriptions indicate, modern tort cases increasingly take place at the intersections of state and federal law; constitutional, statutory, regulatory and common law; and substantive, evidentiary, procedural, and remedial law. It is thus increasingly necessary for professors of tort to come to terms with these intersections, and to consider how to incorporate their insights into these subjects into the teaching of torts. More generally, by focusing on these intersections, the conference will engender discussion and analysis that will interest practitioners, judges and scholars with a wide range of practical and scholarly interests.

II. Suggested Panel Topics and Panelists

Day 1: Judge as Gatekeeper (I): Causation and Evidence

Panel 1: Daubert, Kumho Tire and Judicial Oversight of Scientific Controversy. The United Supreme Court has proved to be a leader in the movement to require closer judicial scrutiny of putative scientific expertise in tort cases. First in pharmaceutical product-liability cases and then across the board, the Supreme Court has turned the evidentiary permissiveness of the mid-Twentieth Century on its head. Congress and many state courts and legislatures have followed suit. Have the courts found workable criteria for this gatekeeping function? How has it changed or constricted the rights of plaintiffs and defendants? Have the concerns over "junk science" which precipitated the Court=s action been adequately addressed?

Possible Panelists:
--Names Deleted--

Panel 2: Courts as Truth-Seekers: A Comparative Law Analysis. Traditionally, the American legal system has left issues of scientific controversy to the adversary system in general, and the jury in particular. Other legal systems, such as the German and French systems, give the judiciary a much broader role in the evaluation of scientific claims. As American judges begin to experiment with court-appointed experts and panels, the need to acquaint ourselves with the comparative advantages of other legal systems becomes increasingly evident.

Possible Panelists:
--Names Deleted--

Panel 3: The Third Restatement and Causation. Causation standards in negligence and product liability cases help determine which categories of tort cases will survive pre-trial motions and appellate review and which will not. The Third Restatement's proposed formulations -- which will be in draft by 2002 -- will have a significant impact on how courts handle causation issues, particularly in problem areas such as toxic torts, medical malpractice, and industry-wide product liability cases. Additionally, proximate cause shares with "duty" the distinction of being the most doctrinally confused and unsatisfactory aspect of negligence law, and yet its role in circumscribing the scope of liability is unquestioned. "Duty" in the Restatement Third Draft has already produced substantial controversy among legal scholars, and The Draft's treatment of proximate cause will likely do the same.

Possible Panelists:
--Names Deleted--

Day 2: Judge as Gatekeeper (II): Class Actions, Discovery and Damages

Panel 1: Class Actions and Settlement after Amchem and Ortiz . The Supreme Court has cast a strongly skeptical eye on mass tort litigation that attempts to resolve simultaneously the rights of present and future claimants. Nonetheless, as new mass torts continue to emerge, and as Congress continues to decline to intervene, the pressure to attain such settlements at the trial court level remains intense. What options for mass resolution are still available under the Court's decisions? How aggressive a role should courts play in scrutinizing settlements? What does the future hold for the judicial resolution of mass torts?

Possible Panelists:
--Names Deleted--

Panel 2: Judicial Power and Corporate Disclosure. Legal norms fostering transparency have been a hallmark of modern American securities law, but not so for tort law or public safety law more generally. Indeed, there is growing concern among courts and legal ethics experts that corporate disclosure both prior to and during litigation is often problematically restrictive. How aggressive should courts become in enforcing broad discovery in tort litigation? What is the proper ethical balance for plaintiffs' and defense lawyers in generating and in responding to discovery? The Federal Rules of Civil Procedure has pushed for broader discovery: should courts and Congress push even further?

Possible Panelists:
--Names Deleted--

Panel 3: Judicial Review of Damages. Traditionally, tort damages were almost exclusively the province of the jury. Yet, in a steady line of decisions, the Supreme Court has made clear that it wishes to foster a constitutional common law of punitive damages, under which trial and appellate courts will closely monitor and frequently adjust jury awards. By contrast, the Court in Gasperini held that vigorous federal appellate review of compensatory damages would amount to an unconstitutional invasion of the jury's province. Meanwhile, state courts and legislators have imposed various procedural and substantive limits on jury discretion in awarding both punitive and compensatory damages. To what extent will the hope of a rationalized law of punitive damages be realized? Is there a place left for large punitive awards as punishment for wrongful conduct? Gasperini notwithstanding, to what degree will the concern for judicial control of punitive awards spill over into other areas, such as damages for pain and suffering and emotional distress?

Possible Panelists:
--Names Deleted--

Day 3: Judges and Legislatures: Tort Litigation in Our Constitutional Order

Panel 1: State Constitutional Law and the Challenge to Legislative Supremacy. It is a basic premise of our legal system that state legislation trumps state common law. Nonetheless, a number of state high courts have invalidated tort reform statutes on state constitutional grounds, even as others have held that such intervention amounts to the revival of illegitimate "Lochnerism." Are there constitutional limits on tort reform? Can they be articulated in a principled manner that sets limits on legislative action while still recognizing a legitimate sphere of remedial legislation?

Possible Panelists:
--Names Deleted--

Panel 2: Federal Preemption and the Preservation of Common Law Remedies. The United States Supreme Court appears to be increasingly willing to adopt arguments that state tort actions are preempted by the existence of overlapping federal regulation. To what extent have these decisions quietly effected national tort reform? Is ex ante regulation an adequate substitute for remedial causes of action? Are there any meaningful federal constitutional limits on Congress's power to preempt state tort law?

Possible Panelists:
--Names Deleted--

Panel 3: The Melange of State and Federal Liability Schemes: the Case of HMOs. The evolution of the medical profession, the tangled law of "bad faith" breach of insurance contract, and the overlay of ERISA preemption, has transformed medical malpractice law and left it in a state approaching disarray. With passage of a federal "Patients' Bill of Rights" looming, will some order to be restored to this area? What will be the respective roles of federal legislation and state common law under this new regime?

Possible Panelists:
--Names Deleted--

III. Timeliness of the Program/Interest of the Program to AALS Members

As indicated by the foregoing, the program is designed to be both timely and interdisciplinary in its focus. The last AALS program emphasizing tort law took place in June 1996, roughly seven years prior to the proposed date of this conference. Many of the developments identified above, including the Supreme Court's class action decisions, the issues surrounding HMO liability, and the Draft Third Restatement, post-date the 1996 conference. More importantly, each of the proposed program topics concerns 'hot' topics not only in torts but in administrative law, civil procedure, constitutional law, evidence, professional responsibility, health care law, and other areas. Moreover, there is every reason to believe that these subjects will remain of interest and importance in the next year and a half.

IV. Recommendations for Members of Planning Committee

We have sought to identify a diverse slate of potential Planning Committee members with outstanding academic credentials. In our view, any or all of the following would be appropriate members of the program's Planning Committee.
--Names Deleted--