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JOURNAL OF LAW , ECONOMICS & POLICY VOLUME 8 WINTER 2011 NUMBER 2 EDITORIAL BOARD 2011-2012 Larry Pounders Editor-in-Chief Shannon Minarik Daniel J. Wisniewski Executive Editor Managing Editor John Buckley Katie Barnes Mike DeRita Senior Articles Editor Senior Notes Editor Senior Research Editor Melissa Alfano Graham Dufault Daniel Glynn Elyse Dorsey Rachel Fertig Brendan Mullarkey Andrew Galle Articles Editors Notes Editors Research Editors Dallin Glenn Laura A. Lieberman Melissa Alfano Articles Submissions Editor Publications & Outreach Editor Symposium Editor MEMBERS Jarred Bomberg Malaikah Choudhry Kay Teng Corey Carpenter Benjamin Nelson William Wiegand Christina Newton CANDIDATE MEMBERS Peter Anderson Anthony Peter Kanakis Adam Park Emily Barber Hollie Kapos Alex Payne David Brodian Juan Kassar Tom Randall Michael Brody Jason Malashevich Adam Schneider Kylie Caporuscio Louise Martin Morgan De Ann Shields Benjamin Charlton Jacob Merrill Mark Stevens Nathaniel Harris Genevieve Miller Robert Strange Carolyn Head Elizabeth Newell Mark Weiss Jennifer Johnston Lauren Wynns i 1 JOURNAL OF LAW , ECONOMICS & POLICY VOLUME 8 WINTER 2011 NUMBER 2 BOARD OF ADVISORS Lisa E. Bernstein Francesco Parisi James M. Buchanan Eric Posner Judge Guido Calabresi Judge Richard A. Posner Lloyd R. Cohen Roberta Romano Robert D. Cooter Hans-Bernd Schäfer Robert C. Ellickson Steven M. Shavell Richard A. Epstein Henry E. Smith Judge Douglas H. Ginsburg Vernon L. Smith Mark F. Grady Gordon Tullock Bruce H. Kobayashi Thomas S. Ulen Henry G. Manne W. Kip Viscusi A. Douglas Melamed Todd J. Zywicki ii JOURNAL OF LAW , ECONOMICS & POLICY VOLUME 8 WINTER 2011 NUMBER 2 CONTENTS 6TH ANNUAL JUDICIAL SYMPOSIUM ON CIVIL JUSTICE ISSUES GEORGE MASON JUDICIAL EDUCATION PROGRAM NOVEMBER 13-15, 2011 EDITED TRANSCRIPTS 167 EMERGING CIVIL JUSTICE ISSUES Robert S. Peck, President, Center for Constitutional Litigation Joe Hollingsworth, Partner, Hollingsworth LLP Moderator: Henry N. Butler, Executive Director, George Mason Law & Economics Center 183 THE AMERICAN LAW INSTITUTE’S NEW PRINCIPLES OF AGGREGATE LITIGATION Sam Issacharoff, Professor of Law, New York University School of Law Judge Carolyn Kuhl, Superior Court of California for the County of Los Angeles Francis McGovern, Professor of Law, Duke University School of Law Stephanie Middleton, Deputy Director, American Law Institute Moderator: John Beisner, Skadden, Arps, Slate, Meagher & Flom LLP 213 TECHNOLOGY IN THE LAW AND POSSIBLE SOLUTIONS FOR PROVIDING INCREASED ACCESS TO THE UNDERSERVICED MIDDLE CLASS Charles Rampenthal, General Counsel, LegalZoom Moderator: Linda Kelly, Director, George Mason Judicial Education Program, George Mason Law & Economics Center 233 THE FUTURE OF CLIMATE CHANGE LITIGATION AFTER AEP V.CONNECTICUT Rick Faulk, Partner, Gardere Eric Lasker, Partner, Hollingsworth LLP Amanda Leiter, Associate Professor of Law, American University Washington College of Law Mike Myers, Assistant Attorney General, New York State Office of the Attorney General, Environmental Protection Bureau Moderator: Henry N. Butler, Executive Director, George Mason Law & Economics Center 257 THIRD PARTY LITIGATION FINANCING Joanna Shepherd Bailey, Associate Professor of Law, Emory University School of Law Michelle Boardman, Assistant Professor of Law, George Mason University School of Law Jeremy Kidd, Visiting Assistant Professor of Law, George Mason University School of Law Eric Schuller, Director of Government & Community Affairs, Oasis Legal Finance Paul Sullivan, Senior Vice President, Juridica Capital Management, US, Incorporated Moderator: Geoffrey J. Lysaught, Deputy Executive Director, George Mason Law & Economics Center iii 2 283 THE EXPANDING ROLE OF STATE ATTORNEYS GENERAL IN ENFORCING FEDERAL STATUTES Jennifer Epperson, Legislative & Policy Counsel, North Carolina Department of Justice Jim McPherson, Executive Director, National Association of Attorneys General Anthony Troy, Senior Counsel, Troutman Sanders LLP Greg Zoeller, Indiana Attorney General Moderator: Linda Kelly, Director, George Mason Judicial Education Program, George Mason Law & Economics Center 301 PRIVACY ENFORCEMENT UNDER STATE CONSUMER PROTECTION ACTS Justin Brookman, Director, Project on Consumer Privacy, Center for Democracy & Technology Shannon Choy-Seymour, Assistant Attorney General, Massachusetts Office of the Attorney General, Consumer Protection Division David Lieber, Chief Policy Counsel, Google Michael Martone, Executive Policy Advisor & Counsel, Connecticut Office of the Attorney General Moderator: James C. Cooper, Director of Research & Policy, George Mason Law & Economics Center 335 MEDICAL LIABILITY REFORM: AN ISSUE FOR THE STATES, THE FEDS, OR NEITHER? David Kendall, Senior Fellow for Health & Fiscal Policy, Third Way Jonathan Klick, Professor of Law, University of Pennsylvania School of Law Paul Taylor, Chief Counsel, Subcommittee on the Constitution, United States House Judiciary Committee Moderator: Scott Hazelgrove, Policy & Research Associate, George Mason Law & Economics Center 367 CLASS ACTIONS IN THE WAKE OF DUKES V. WAL-MART Mark Perry, Partner, Gibson, Dunn & Crutcher LLP Joe Sellers, Partner, Cohen Milstein Sellers & Toll PLLC 381 DEVELOPMENTS IN PRODUCTS LIABILITY:GENERIC DRUG LITIGATION Mike Shumsky, Partner, Kirkland & Ellis LLP Brennan Torregrossa, Assistant General Counsel, Glaxo Smith Kline Valerie Nannery, Litigation Counsel, Center for Constitutional Litigation Moderator: Linda Kelly, Director, George Mason Judicial Education Program, George Mason Law & Economics Center iv 2011] 167 EMERGING CIVIL JUSTICE ISSUES Joe Hollingsworth, Robert S. Peck Moderator: Henry N. Butler BOB S. PECK: Determined at the beginning of every preemption case. Well, after his departure from the court, it seemed to be not so important anymore. Just as his longstanding campaign against legislative history seemed to prevail, in this case PLIVA, Inc. v. Mensing1 because the court took a purely textual approach to the statute without consideration of any extraneous material. Justice Thomas, who wrote the opinion, was able to get a plurality, not quite a majority, but the plurality of the court, to agree that the presumption against preemption was not a useful interpretive tool. Let me highlight three of the preemption cases. Bruesewitz v. Wyeth2 found that the National Childhood Vaccine Injury Act,3 which created a no hold compensation program, preempted state tort law as long as there was a proper manufacturer warning about the vaccine that any remaining side effects were unavoidable. Much like the FCC v. AT&T Services Inc.4 case where it turned on the definition of the word “personal,” this case, Bruesewitz, turned on the word “unavoidable.” To the majority, “unavoidable” meant the consequences occurring after proper manufacture. To dissenters, it meant that there was no alternative way of making the vaccine. That’s what this very close case turned on. In PLIVA, Inc. v. Mensing,5 the Court held that state failure-to- warn cases against generic drug manufacturers were preempted even if the name brand manufacturer would be liable if the pharmacy had dispensed that name brand instead of the generic version of the drug. This was the first time the Supreme Court found impossibility preemption, that the state law requirement was impossible for the drug company to comply with. They said that there was no way for the generic drug company to be able to put any kind of warning on their packaging when they discovered that their drug had additional adverse side effects, even though the name brand drug manufacturer could have a variety of avenues to do so. Now Wyeth v. Levine,6 which found that you did not preempt name brand liabil- ity, found liability didn’t depend on the fact that there were these different ways in which drug companies could notify people that the drug was no longer as safe as its original label showed. To the majority in Mensing, this was a critical difference. The court found that even though the FDA denied that generic drug companies had no means to manufacture, to provide a warning, and that they were not helpless, the court found, despite expert opinion, that this was so. One interesting exchange during the argument, Justice Scalia asked the Deputy Solicitor General how these generic drug 3 168 JOURNAL OF LAW,ECONOMICS &POLICY [VOL.8:2 companies could possibly know about new medical evidence that their drugs were no longer as safe as they thought. After all, he said, these are not these big enterprises that hire Ph.D.’s, they hire high school students who are good at mixing drugs. Needless to say, the generic drug industry is a multi-billion dollar industry, and almost half the generic drugs are manufactured by name brand manufacturers. So, that was one of those questions that are dizzying about the way in which the Court operates. So what remains for the patient who uses the generic form of the drug when the warnings are inadequate? Well the defendant, the petitioner in this case, the generic drug industry, told the court that they should sue doc- tors for failing to inform the patient that if they used the generic drug they would have no remedy and if they used the name brand, they would have a remedy if things go wrong. Another alternative is to follow what California does. As a result of a case called Conte,7 California imposes liability on the name brand drug manufacturer even if you took the generic drug, because they’re the ones responsible for making sure the labels are up to date and the generic drug manufacturer