Legal Commentary

Like many (see here, here, here, here, here, here, here, here, and here), I was shocked and saddened by the recent passing of Richard Nagareda.  I had only spoken to him once, at a conference this past March, but even in our brief encounter he displayed a grace and kindness that I admired.  Judging from the memorials, his decency towards me was not an isolated incident.  To borrow a phrase from an attorney I worked for in Boston, Nagareda was truly one of the finest of the fine. 

Here I want to highlight one of Nagareda's many accomplishments ? his involvement as an associate reporter for the American Law Institute?s Principles of the Law of Aggregate Litigation.  The fact that the project was completed is itself an achievement, since similar projects have not been successful.  Apart from the project's completion, the Principles themselves are an enormous contribution to the law of complex litigation, and I think that the other reporters to the project -- Samuel Issacharoff, Charles Silver, and Robert Klonoff -- would all agree that Nagareda's contribution was immense.  It is easy to see why when you examine the themes of Nagareda's scholarship.

One of Nagareda's key insights in his scholarship was that many complex procedures -- class actions, MDLs, bankruptcy, even "informal aggregation" involving the private settlement of claims in the aggregate -- all shared a problem of "governance."  By "governance" he meant the difficulty of mediating the interests of all those affected in any given case, particularly when there are many, many affected individuals (think millions), their interests are in some way intertwined, and their interests may diverge wildly.  The classic example is asbestos litigation, where, despite some commonality as to certain factual and legal issues, the victims all differed as to the products causing the injury, the timing, the diseases suffered, the amount of damages, the state law that applied, etc.  One common way to manage such conflicts is to appoint a representative, say, class counsel or "lead counsel" in an MDL, to speak on behalf of the class.  However, Nagareda was quick to point out that it was not altogether clear that this move improved things or was even legitimate, since the representative's interests can diverge significantly with the interests of the class.  In his magnum opus, Mass Torts in a World of Settlement, Nagareda carefully shows the elusiveness of designing legitimate governance structures for "mass torts" like asbestos litigation in a wide range of contexts, jumping from class actions to bankruptcy to even suits bought by governmental actors on behalf of those injured.

Although Nagareda's concern with "governance" dovetails with the constitutional due process concern with "adequacy of representation," Nagareda used the concept of "governance" as a way to bring in scholarship from other fields, most prominently administrative law.  By looking at this outside scholarship, Nagareda was able to see the problem as one of, to borrow his word, "design."  Nagareda did not see the problem of governance as intractable.  Instead, he saw it as a "magneto" problem.  Throughout his vast scholarship he continually proposed seemingly minor tweaks to existing procedures or institutions to assure a fairer and more legitimate "peace" in mass tort and similar litigation.

Nagareda's concern with "governance" and "design" can be seen throughout the Principles.  Much has been written about the aggregate settlement rule proposed in Section 3.17, but in other proposals -- expressing a preference for contingency fees (Section 1.05(c)(5) & cmt. h), proposing that lead counsel should be assigned to parties with the largest stakes (Section 1.05(c)(2) & cmt. e), and concluding that individual notice may be costly and self-defeating in some circumstances (Section 3.02 cmt. c) -- you see the spirit of Nagareda?s scholarship.  Even though many of these proposals have been proposed and utilized by others, they are all consistent with a decidedly "design" ethos.

Many of Nagareda?s insights suggest much greater reforms than anything Nagareda or the Principles propose.  In a current draft I have recently completed and plan to submit this February, I argue for a greater use of mandatory class actions in mass torts than the Principles would permit.  I will blog about the draft in the coming weeks.  But criticizing Nagareda for not pushing the envelope misinterprets what it is that Nagareda and the Principles sought to do.  Nagareda not only had a gift for seeing common threads, but for the practical.  He was respected by both scholars and practitioners.  He never gravitated to revolutionary proposals.  Instead, he sought realistic ways to move the law to a better place.  That he was able to accomplish this in his all-too-brief lifetime is a gift to us all.