Robert S. Peck, Jonathan Corn & Sanjana Manjeshwar
This report examines the role that civil litigation against the gun industry plays in addressing gun violence. It describes how artificial barriers have largely shielded gun manufacturers and dealers from legal accountability for the harm caused by their products. These include: the Protection of Lawful Commerce in Arms Act (PLCAA), a 2005 law that bars most civil litigation against the gun industry, with narrow exceptions; the Dickey Amendment, which restricts funding for gun violence research; and the Tiahrt Amendments, which prevent the government from releasing gun trace data; and the uncertain application of public nuisance law in product liability litigation. Past litigation against the gun industry produced mixed results, although lawsuits against the industry became significantly more difficult to pursue after PLCAA’s enactment. The paper also discusses the direct and indirect public health benefits of civil litigation, including shaping industry behavior by incentivizing product safety, and strategies for the future.
Nora Freeman Engstrom, Todd Venook, David Freeman Engstrom, and Silvie Saltzman
Multidistrict litigation (or MDLs) now dominates federal dockets, impacting hundreds of thousands of plaintiffs and routinely grappling with issues of national import. Its growth exposed has raised significant questions about how best to adjudicate cases involving mass harms. On May 20, 2022, the Deborah L. Rhode Center on the Legal Profession at Stanford Law School and the Berkeley Law Civil Justice Research Initiative hosted a small group of distinguished scholars, judges, policymakers, and practitioners at Stanford Law School to discuss the lawyer-client relationship in MDLs. The Convening sought to analyze contemporary MDLs’ plaintiff-related strengths and weaknesses and to identify practical steps that judges, lawyers, or policymakers might take to address various deficiencies. This report seeks to capture the ideas that generated the most enthusiastic discussion during this convening, to preliminarily consider the proposals’ possible benefits and draw- backs, and to chart a possible research agenda that might better inform future reform activity.
BRIAN T. FITZPATRICK
This research report considers the theory and evidence that class actions deter misconduct. The author shows that the theory behind the deterrence benefits of class actions remains just as strong today as it was when it was introduced 50 years ago by the “classical” law and economics movement. Moreover, although there is not a great deal of empirical evidence to support the theory for class actions, there is some, it is uncontroverted, and it is consistent with reams and reams of empirical evidence in favor of deterrence for individual lawsuits. The report concludes that we have every reason to believe the class action deters misconduct.
KAIMIPONO DAVID WENGER & LUCAS BAINBRIDGE
Legal advocates have long had difficulty bringing claims for the traumatic harms caused by racial animus. Litigators have struggled to show the causal links that create racial trauma. However, emerging genetic and epidemiological evidence suggests that this challenge may now be surmountable. Not only does the new evidence show that racial trauma has lasting biological impact, but also that this trauma can be transferred to future generations. This white paper synthesizes emerging innovations in scientific research with legal concepts of causation in tort law to suggest possibilities for new civil legal remedies for racial trauma.
Anjali Niyogi, Hiroko Kusuda & Serena Chaudhry
The number of immigrants arriving and residing in the Deep South, an area historically considered
unfamiliar and inhospitable to immigrants, has risen in recent years, leading to heavier caseloads for
immigration lawyers and judges and less-than-ideal conditions for asylum-seekers. To address these
circumstances, one group of lawyers, psychologists, and doctors—the medical-legal partnership
embedded within Luke’s House Clinic in New Orleans—has coalesced to provide comprehensive physical
and psychological evaluations, as well as legal services, to the thousands of immigrant detainees and
non-detainees in Louisiana alone. The advantages of such medical-legal partnerships (MLPs) lie in their
ability to share resources, information, and personnel to achieve more efficient and effective outcomes
for their participants. The Luke’s House MLP and other MLPs like it, such as the MLP of Southern Illinois
(MLPSI), the HELP: MLP in southeastern Pennsylvania, and Terra Firma in New York, have shown large
returns on investment and successfully effected positive legal and policy changes for vulnerable
individuals in their communities. This paper discusses the successes of these MLPs, and the operation of
the Luke’s House MLP in particular, to demonstrate the role that MLPs can play in the ever-demanding
pursuit of asylum in the U.S. and the situation of detention on the border.
Stephen B. Burank & Sean Farhang
This white paper presents the first empirical analysis of how the ideology, race, and gender of Court of Appeals judges influence class certification decisions under Rule 23 of the Federal Rules of Civil Procedure. The authors find that the ideological composition of the panel (measured by the party of the appointing president) has a very strong association with certification outcomes, with all-Democratic panels having dramatically higher rates of pro-certification outcomes than all-Republican panels. The authors also find that the presence of one African-American on a panel, and the presence of two women (but not one), is associated with procertification outcomes.
Richard L. Jolly, Valerie P. Hans & Robert S. Peck
This white paper examines the civil jury as a pivotal institution in the United States’ social and constitutional structure since the founding. The Seventh Amendment of the U.S. Constitution and similar provisions in state constitutions protect the rights of litigants to rely upon juries to resolve most legal civil disputes. This liberty is deserving of this type of foundational protection because it ensures a significant degree of popular control over the application and development of the law. Yet, legal, political, and practical attacks and challenges over time have hollowed the constitutional promise and role of the civil jury. As noted in the white paper, these challenges include: procedural changes stripping juries of their authority, campaigns to denigrate the role of juries, and COVID-19’s unique constraints on the empaneling and use of civil juries. The result is a tragic loss of the demonstrable sociopolitical benefits of jury service. The white paper concludes that much is risked if the attacks on the civil jury continue and if efforts are not taken to reverse the damage already done. Reforms for reviving the institution should be focused on removing barriers to jury access and enhancing fair and accurate jury fact-finding.
Brian M. Murray, Jon B. Gould & Paul Heaton
This white paper considers the soundness of the doctrine of absolute immunity as it relates to Brady violations. While absolute immunity serves to protect prosecutors from civil liability for good-faith efforts to act appropriately in their official capacity, current immunity doctrine also creates a potentially large class of injury victims—those who are subjected to wrongful imprisonment due to Brady violations—with no access to justice. Moreover, by removing prosecutors from the incentive-shaping forces of the tort system that are thought in other contexts to promote safety, absolute immunity doctrine may under-incentivize prosecutorial compliance with constitutional and statutory requirements and increase criminal justice system error.
The paper seeks to identify ways to use the civil justice system to promote prosecutorial compliance with Brady, while recognizing the need to provide appropriate civil protections to enable prosecutors to fulfill their unique role within the criminal justice system. After developing a novel taxonomy of Brady cases and considering the prosecutorial community’s views regarding appropriate Brady remedies, it proposes a statutory modification of absolute immunity that might better regulate and incentivize prosecutor behavior, reduce wrongful convictions, and improve access to justice.
NICHOLAS M. PACE, BETHANY SAUNDERS-MEDINA, JAMIE MORIKAWA, ANNE BLOOM & SANJANA MANJESHWAR
On October 1, 2020, the RAND Institute for Civil Justice and the UC Berkeley Civil Justice Research Initiative brought together a distinguished group of jurists, practicing attorneys, and academics to discuss the implications of the COVID-19 pandemic on the courts. Supported by a generous grant from the American Association for Justice Robert L. Habush Endowment, the virtual conference consisted of four panels, each of which explored a different topic related to the impact of COVID-19. This white paper provides an introduction to the issues and an edited transcript of the symposium proceedings.
STEPHEN B. BURBANK & SEAN FARHANG
April 2020 - The Federal Rules of Civil Procedure effectively determine access to court and likelihood of success in court for those seeking to enforce federal rights through litigation. This white paper focuses on the Advisory Committee on Civil Rules, which has primary responsibility for drafting the Federal Rules, under Chief Justice Warren Burger and his successors. Published by The Civil Justice Research Initiative, a Project of UC Berkeley School of Law.
ALEXANDRA D. LAHAV & PETER SIEGELMAN
January 2019 - Plaintiffs Falling Win Rate and the Rule of Law. Published by The Civil Justice Research Initiative, a Project of UC Berkeley School of Law.