 |
 |
| Aaron Twerski |
Managerial Judging: The 9/11 Responders' Tort Litigation, 98 CORNELL L. REV. 1 (Issue No. 1 forthcoming Fall 2012) (with A. Hellerstein and J.A. Henderson Jr.)
After the 9/11 attack on the World Trade Center approximately 60,000 responders came to ground zero to assist in some fashion. Over the years some 10,000 responders brought suit against the City of New York and its contractors under a variety of theories for injuries they suffered from exposure to the toxic environment at the World Trade Center site. This conglomeration of cases brought to Judge Alvin Hellerstein, sitting in the federal Southern District of New York, was the most complex mass tort case in the history of the United States.
The responders alleged that they suffered over 300 different diseases arising from exposures at the site ranging from several days to ten months. The Court, with the aid of Special Masters Henderson and Twerski, created a complex database that accounted for a host of variables and that categorized diseases utilizing objective criteria to determine their relative severity so that the Court and the parties could get an overview of the scope of the injuries actually suffered over time. The parties presented the Court with a settlement for all the cases slightly in excess of $600 million dollars. The federal government had set aside a fund of one billion dollars to compensate victims who had legitimate tort claims against the city. Although this case could not be certified as a class action Judge Hellerstein rejected the settlement as unfair. Ultimately the parties agreed to add $125 million in additional monies to the settlement and the Judge found the settlement to be reasonable.
In this article, the authors deal with the creative role of the judge in managing discovery and his authority to reject a settlement in a case that had many attributes of a class action but was not a true class action. They argue that Judge Hellerstein’s assumption of responsibility for managing discovery and his rejection of the settlement was necessary and proper. It was the only way to bring about a settlement and assure that the plaintiffs would receive fair compensation.
 |
|
| Christopher Serkin |
Public Entrenchment Through Private Law: Binding Local Governments, 78 U. CHIC. L. REV. 879 (2011)
Anti-entrenchment rules prevent governments from passing unrepealable legislation and ensure that subsequent governments are free to revisit the policy choices of the past. However, governments — and local governments in particular — have become increasingly adept at using private law mechanisms like contracts and property conveyances to make binding precommitments into the future. Simultaneously, courts and state legislatures in recent years have reduced the availability of core de-entrenching tools, like eminent domain, that have traditionally allowed governments to recapture policymaking authority from the past. These changes threaten to shift democratic power intertemporally.
Serkin develops a typology of mechanisms for public entrenchment through private law and private rights, as well as core anti-entrenchment protections embedded in the law. He then develops a framework for evaluating entrenchment concerns, comparing the costs of decreased flexibility against the benefits of increased reliance. Viewed through this framework, some recent changes in the law appear particularly problematic, from restrictions on eminent domain, to the rise of development rights, and creative forms of municipal finance like selling assets instead of incurring debt.