Effron on Disaster Specific Mechanisms for Consolidation

Robin Effron (Brooklyn Law) recently posted an article entitled “Disaster-Specific Mechanisms for Consolidation” on SSRN (and forthcoming in the Tulane L. Rev.).  Here is the abstract:

Within the past decade, two large scale catastrophes – the terroristattacks of September 11, 2001 and Hurricanes Katrina and Rita – havebeen the recent laboratories of new congressional provisions for thefederalization and aggregation of mass tort claims. In the case ofSeptember 11, the litigation has been shaped by the Air TransportationSafety and System Stabilization Act (ATSSSA) an aggregation device thatCongress devised specifically to address that particular catastrophe.

TheHurricane Katrina litigation has seen the use (and attempted use) ofthe Multiparty, Multiforum Trial Jurisdiction Act (MMTJA), an eventjurisdiction device of general application that Congress established in2002. This article explores three aspects of post-catastrophelitigation where the consolidation of cases, or the statutes thatgovern the consolidation of such cases, raise issues about how to thinkabout disaster litigation as a singular category. After providing abrief summary of the paths of the September 11th and Canal Breachlitigations, this article demonstrates that when the boundaries offederal jurisdiction are shaped by reference to events, this affectshow cases may be consolidated, particularly with respect to Congress’sdegree of specificity in naming an event as the organizing principle ofjurisdiction. These two federal statutes challenge courts to considerhow closely, as a matter of law, federal jurisdiction based on theATSSSA and the MMTJA and the consolidation of cases must be linkedunder these respective statutes. The article then turns to a discussionof the role that courts of appeals play in determining the boundariesof federal jurisdiction and consolidation for disaster litigation. Thearticle ends with a discussion of the practical and administrativeconcerns of consolidated disaster litigation. I argue that theSeptember 11th and Canal Breach litigations show that there can be aproblem for judges and litigants of sorting common from uncommon issuesin the context of a district-wide consolidation organized around anevent.

ADL