Two new items on my bookshelf

Two items have found their way to my bookshelf since I wrote you last.  One made its way down from my upstairs office now that I have begun the process of moving and discovered some current items accidentallly left behind.   This lost treasure is Alexandra Lahav's recent reprint of "The Law and Large Numbers: Preserving Adjudication in Complex Litigation" that graced pages 383-436 of Volume 59 in the 2007 Florida Law Review.   Many of you are familiar with the piece, since Alexi presented an early draft at a faculty workshop.  I commend to you the final version, which does a beautiful job of placing a contemporary problem in a broad context.   The problem, of course, is our system's difficulty with providing individualized justice in the form of courtroom trials for situations when large numbers of people have been injured in similar ways.   The context Alexi identifes involves the longstanding tension between providing greater access to the system for many or a fairer, more considered process for those whose claims are winding their way through the courts. (For an analogy consider whether the marginal dollar of health care expenditures should go to provide insurance for those uncovered or to better care for someone already under the surgeon's knife.)  Alexi usefully compares the current situation judges face in assessing their capacity to manage claims brought in large numbers with the earlier problems experienced during the New Deal when courts assessed whether regulatory agencies could successfully overcome the problems of bureaucracy, capture and the risk of erroroneous decisions.   She goes on  to challenge contemporary reluctance to embrace judicial management of large claims.   Such claims can be effectively managed, she argues, both through refinement and expansion of procedural devices we have already invented such as class actions and multi-district litigation, and with new techniques such as sample trials.  Her real point is that current practice has resulted in many large-scale controversies being resolved through private settlements, a process that protects fewer public values such as transparency and fairness to future claimants.  It's almost as if guilt over failing to provide the day-in-court ideal (an ideal Alexi notes that has warts of its own and which has never been universally available) has allowed public spirited judges to be bullied by private litigation agendas from both the plaintiffs' and defendants' sides.  Alexi urges everyone to bite the bullet, recognize that not every form of private claim is best resolved through individualized litigation, and move toward a more humanized process for resolving claims collectively.   I have no doubt she'll have more to say on the subject and that her views will help spark lively controversy.  Bravo!

           The second item for my collection, hot off the presses, is  "Wrestling with MUD's to pin down the Truth about Special Districts" penned by Sara Galvan, which has just appeared in the May 2007 issue (Vol. 75) of the Fordham Law Review at pages 3041-80.   Sara's piece too was presented in draft to a faculty workshop.  The final version, in addition to sporting a priceless title,  productively focuses on a particular example of a widespread yet understudied aspect of our governmental structure to question the desirability of that structure.  The narrow example she chooses, in part based on personal experience, is that of Municipal Utility Districts ("MUD's") in Texas.  There are 950 such districts yet they are just a small fraction of the 35,052 Special Purpose Districts, whose broad reach and enormous power make them the true aim of Sara's study.   Special purpose districts, Sara says, are often defended as more democratic, more constrained in their reach and more efficient. Sara effectively interrogates each of these traditional justifications for Special Purpose Districts.  Using MUD's as her example she challenges whether such districts are actually more demorcatic than other units, whether they really have limited powers and whether they are in fact more efficient than broader governmental units.  She shows how MUD's can be captured by parochial interests such as that of developers so as not to be particularly democratic;  how they can arrogate broad powers to themselves and how perhaps their efficiency results from unfairly shifting the costs of externalities onto others.  One only hopes policymakers are reading and paying attention.   Three cheers!

           One striking thing about both this week's entries is the depth and clarity added between the workshop versions and the ones that made it to print.   It's wonderful to see individual success benefit from collective effort.  Please join me in congratulating Alexi and Sara.    JP