Peter Shuck’s masterful Agent Orange on Trial: Mass Toxic Disasters in the Courts may be two decades old, but it stands as one of the best books on class-action litigation ever written. Some of the parallels to the Google Book Search case are striking. I noticed the size of the class, the difficulty of financing the case, conflicts among class lawyers based on who their clients were, the legal defenses that made proceeding to trial risky for plaintiffs, the shift from a comparatively passive judge to one exerting more control over the case, the choice-of-law problems, the view of many class members that the case was as much about vindicating their rights as about compensation, the tension between objecting and opting out, notice and deadline problems, the enormous pressures to settle, the complexity (and controversy) of the distribution plan, the press coverage and PR wars, the multiple roles of the fairness hearing, the power of innovative procedures to solve social problems, the risks of innovating procedures for legality and individual rights, and the reluctance of Congress to play a role in resolving the issues. There are many differences, as well, but the book is still quite illuminating on the present dispute. I wonder whether perhaps it is time for a theory of mass copyright torts to parallel Schuck’s theory of mass toxic torts.
Some articles in my recent pile, from each of which I also learned:
- Susan P. Koniak & George M. Cohen, Under Cloak of Settlement, 82 Va. L. Rev. 1051 (1996)
- Alexandra Lahav, Fundamental Principles for Class Action Governance, 37 Ind. L. Rev. 65 (2004)
- William B. Rubinstein, The Fairness Hearing: Adversarial and Regulatory Approaches, 53 UCLA L. Rev. 1435 (2006)