PrawfsBlawg

Ilan Wurman (Minnesota) has been one of the highest-profile scholars defending Trump’s birthrigh citizenship order. He has been criticized for doing bad scholarship (especially bad history), as well as being politically motivated to defend and offer a patina of scholarly support to the Trump Administration.

On that last point, Wurman responded by accusing the “thousands” of liberal scholars of never reaching a conclusion that does not align with their political ideology, where as originalists always reach conclusions that do not align with their political views.

Not that I aPutting aside “the other side is political” as a response to an accusation of being political, but:

• I have spent 5 of the past 8 years arguing that federal courts cannot universally enjoin the Trump Administration and that Trump does not “violate the law” by attempting–until a court orders otherwise–to deprive certain children of citizenship, to fire statutorily protected federal employees, etc.

• I have spent the past 5 years arguing that Red states can enact statutes such as S.B. 8, intended to chill the exercise of certain liberally favored rights through the threat of crippling litigation and liability.

• I have continually argued that conservatives should be able to file bullshit defamation actions in federal court without being subject to anti-SLAPP motions.

• Free speech–taken seriously–always crosses political preferences, which puts me at odds with everyone–fellow Jews, fellow liberals.

So I will put that record up against the many people who discovered that universal injunctions are bad on January 21, 2025 and not when Matthew Kaczmarek was styming everything the Biden Administration tried to do.

Marty Redish used to tell his mentees “If your scholarly or legal conclusions always align with your political preferences, check your scholarly conclusions.”

He was one of the moat colorful witnesses who appeared before the Bayh Subcommittee. Capote testified against Miranda in 1966 on the ground that the killers he chronicled throughout In Cold Blood would not have been convicted if the Miranda warnings were in place. (That’s far from clear, by the way). In his prepared statement, Capote said this:

“I have never met an innocent man who has confessed to a crime he didn’t commit.”

I’m sure this was true, but it was also irrelevant. Lack of personal knowledge says nothing about the existence of that thing. (I’ve never seen a dingo, but that not mean there aren’t any.)

Capote also said: “I have never met a murderer who would willingly confess to his crime with the protection guaranteed by the Miranda decision.” Again, true but beside the point. But he did get the Subcommittee headlines. Senator Bayh was pictured with Capote in the papers the next day.

I wrote about it here yesterday. I have one genuine question. Before breaking into a full-on Crit-plus-integralism gallop, the piece defends a “basic tie-breaker rule” for HLS Federalist Society elections: “if Robert’s Rules of Order and the Elections Code failed to resolve a deadlock, the elections chair would appeal to natural law first principles to decide the controversy.” Somewhere along the way, after the nine paragraphs of criticism of Justice Gorsuch’s opinion in Bostock that one naturally expects to see in discussions of student group election procedures, it says:

It will be upon the future Election Chair to decide these issues, although a strong statutory command can be read for these, given the background literature in classical legal theory that provides meaning to the words that the “State exists to preserve freedom,” that the “separation of powers is central to the Constitution,” and that, “it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.”[26] 

Fine by me. I’m not sure how closely connected it is to the “how do we decide FedSoc election disputes” conundrum, or how the piece manages to proceed from here to an exhortation to learn from King Josiah and engage in a national purge. But, to quote a very wise man, “Forget it, he’s rolling.”

What does puzzle me a little, though, is that footnote:

Joseph Story, Commentaries on the Constitution of the United States, 131 (New Orleans: Quid Pro Books, 2013) (“The aim of every political constitution is, or ought to be, first, to obtain for rulers men, who possess most wisdom to discern, and most virtue to pursue, the common good of society; and, in the next place, to take the most effectual precautions for keeping them virtuous…”); Adrian Vermeule, Common Good Constitutionalism, 59 (Cambridge: Polity Press, 2022) (“In the classical theory, the ultimate genuinely common good of political life is the happiness or flourishing of the community, the well-ordered life in the polis”); Confucius, The Analects, trans. Simon Leys, 2.16 (“The Master said, ‘The gentleman [junzi] understands what is morally right. The petty man [xiaoren] understands what is profitable.’”); Justinian I, The Institutes of Justinian, trans. J.B. Moyle, 7 (Oxford: Clarendon Press, 1913) (“The precepts of the law are these: to live honestly, to injure no one, and to give every man his due.”); 1 Timothy 2:11–12 RSVCE (“Let a woman learn in silence with all submissiveness. I permit no woman to teach or to have authority over men; she is to keep silent.”).

Whether I agree or disagree–as it happens, I would be delighted if virtue and virtue ethics were far more prominent in thinking about constitutional law and politics, not least because of their ability to help us think through things like this and this and this, as well as this and this and, oh yeah, this–I can understand most of these citations. I can understand their relationship to, if not the actual subject of HLS FedSoc election tie-breakers, then all the other stuff the author gets around to discussing. But I am just plumb flummoxed by what significance the passage from 1 Timothy has here. Perhaps someone can enlighten me.

In 1968, Congress attempted to overturn Miranda for federal cases by enacting the Crimes Control And Safe Streets Act. The Supreme Court held that part of the statute unconstitutional in 2000.

Birch Bayh gave an interesting statement on this issue for the Senate Judiciary Committee Report on the bill. He began by noting that his Subcommittee had held extensive hearings on the issue. His takeaway was:

This entire area is an extremely difficult and complicated one. Law enforcement officials almost unanimously agree that Miranda did in varying degrees cause them considerable difficulty. On the other hand, there was strong evidence expressing reluctance to support an effort to rearrange, restrict or repeal the Fifth Amendment guarantees.

After stating that he thought the bill’s Miranda provision would be struck down, Senator Bayh added this thought:

However, I do believe that [the provision] could serve, as Senator McClellan has suggested[,] as an admonition to the Court, that strong sentiment and cause exists against the further extension of the doctrine pronounced in Miranda. In addition, it is hoped that the consideration of this matter by the Congress will cause all law enforcement agencies to reexamine the actual holding of the Court in Miranda. Much evidence was presented in the hearings of the Subcommittee on Constitutional Amendments to the effect that some well-meaning jurisdictions had extended the holding of Miranda to be more restrictive on the police than was actually the intention of the Court. 

Bayh made a similar observation about the Warren Court’s school prayer cases. (In other words, they were being read too broadly.)

Orly mentioned the two new shows focusing on college and college profs–HBO’s Rooster and Netflix’s Vladimir. I share Orly’s interest in and desire to watch these shows. We watched all of Vladimir and started Rooster. I wrote about The Chair in 2021. But I always walk away disappointed in the depiction of college and academia, which they simplify (cancel culture! snowflakes!) or paint in unrealistic terms (a prof breaks numerous federal computer-hacking laws to identify the student who gave her a bad review).

This article captures many of my thoughts on this. The author is a tv writer married to an academic, so he knows more about academic outside law schools than I do. And remember: When a headline asks a question, the answer is always “no.”

In one sense, this striking piece in The New Digest is an argument that 1) a strong attachment to the value of process and its legitimating role in the rule of law amounts to liberal fetishism; 2) procedure, to offer a tendentious description of the argument, is only good so far as it leads to the results you like; 3) conversely, it is wicked, and “not law,” if it leads to an act of statutory interpretation that requires a government body to “hire a gay man handling children.” (More accurately, that passage should read: “…if it results in government being statutorily prohibited from discriminatorily firing a gay man, albeit a gay man who’s a layperson and not a member of the clergy, who works in a non-child-handling capacity as coordinator of a juvenile court child welfare advocacy program and has helped it win national awards for its work, but who then has the temerity to openly, flagrantly, disgustingly play softball.”)

In another but, I would suggest, equally meaningful sense, the piece is a deployment of wide-ranging, centuries-spanning, “purge”-friendly argument and high-flown language–all in the service of a tussle about who gets to occupy a resume-enhancing position of negligible importance in a student group at an Ivy League law school. Universities, famously, are the place where the arguments are so fierce because the stakes are so small. The saying needs a second part: Ivy League universities are the place where fierce arguments about small stakes get extensive media coverage, and everyone involved in the spat publishes at least one op-ed about it.

It is both pleasing and unsurprising that both senses of the piece–the actual argument it makes, and the relationship of that argument to the actual stakes, which mostly have to do with internecine disputes over the distribution of status goods within the Ivy League–come together, with almost divinely ordered complementarity, in one clear conclusion: The spirit of Critical Legal Studies continues to flourish at Harvard Law School. It’s fitting that this piece appears in The New Digest, because I don’t think anyone currently teaching at Harvard has done more to keep the Crit spirit alive there than Prof. Vermeule.

One hearing of the Bayh Subcommittee that I’ve not posted about before was held in 1972. The subject was the creation of a national primary system for presidential nominations. Here were the three alternatives discussed:

1. A nationwide primary for each party in August of the election year. If nobody got over 40%, there would be a runoff between the top 2. (In other words, no more voting by conventions or convention delegates.)
2. Five regional primaries held between March and July for delegates.
3. Every state would be required to hold a party primary, caucus, or convention on the same date in July.

Essay # 4 in our Book Symposium on Beth Burch’s The Pain Brokers, by W. Bradley Wendel (Cornell)

I am pleased to be part of this review symposium on Beth Burch’s engrossing book, The Pain Brokers. As a mass torts teacher, I am aware that our system of aggregate litigation is at best janky and at worst deeply broken. As a legal ethics scholar and teacher, however, I share Professor Burch’s outrage that the legal profession may be making things worse. In addition to familiar problems like grossly excessive contingency fees (p. 168) and enforcement of arbitration clauses in lawyer-client engagement agreements (p. 216), her story implicates relatively recent developments including alternative business structures and third-party litigation financing. Although I cautiously support both of these developments, what happened to the women profiled in Professor Burch’s book should motivate lawyers and regulators to ensure that adequate safeguards exist to prevent exploitation of vulnerable clients by unscrupulous lawyers. 

The three protagonists in the story are Sharon Gore, Jerri Plummer, and Barbara Shepard, each of whom was prescribed a surgical procedure to alleviate urinary incontinence. The procedure involved the implantation of a mesh sling, made by one of several manufacturers of medical devices. The FDA, which had done a fairly cursory pre-market review of pelvic mesh for implantation in women, subsequently warned that the mesh created a greater risk for post-operative complications, including pain, bleeding, and infection, than surgical procedures that did not use mesh (p. 13). A plaintiffs’ tort lawyer would recognize this situation as having the potential for a products liability claim, alleging design defect and failure to warn, against the manufacturer. If the mesh had been used in numerous patients, the claims could be aggregated, increasing the plaintiffs’ leverage against the manufacturer in settlement negotiations. So far, a pretty standard mass tort story.

But here’s the kicker: Mesh remaining in a woman’s body is associated with a risk of future harm. Tort damages generally require some present, manifested harm. Some states allow recovery for the emotional distress experienced by a plaintiff who reasonably fears future harm as a result of exposure to a toxic substance or, in this case, an implanted medical device that may cause complications. Others say, in effect, “wait and see what happens with your risk; if it materializes, you have a claim for damages.” Given the uncertainty of recovery for future damages, the delta in expected recovery between a plaintiff without mesh removal surgery and those who had the mesh removed was $15,000 vs. $230,000. (p.26).

So now imagine, for the sake of argument, a cartoonishly corrupt plaintiffs’ lawyer. How could this lawyer make as much money as possible off pelvic mesh cases? How about hiring an overseas call center that somehow got access to the medical records of millions of people – maybe because it has connections with an insider at a medical-records storage company (p. 23) – and have employees make phone calls to women who had mesh implanted? The operator would know lots of private information about the woman’s surgical procedure, including the date and location of the operation and the physician who performed it. The calls would be terrifying, using language like “ticking time bomb” to refer to the mesh (p. 16). But the operator would offer a solution, a package deal including a flight to Florida, a hotel room and ground transportation to a medical clinic, and a surgical procedure to remove the mesh. The deal would include a lawyer who would then sue the manufacturer on the woman’s behalf for the full amount of damages, including the expense of the removal surgery. From the lawyer’s point of view, cha-ching!

Making this work requires a source of financing, so the lawyer or the marketing company would also have a contract with a funder who would advance the client’s cost for travel and the surgical procedure, in exchange for a share of the proceeds of the eventual recovery from the mesh manufacturer. Alternatively, the lawyer could be partnered up with a non-lawyer investor, as permitted (with guardrails) in Arizona and the District of Columbia. The financing and services would be governed by a thicket of agreements among marketers, financiers, doctors, and lawyers, and as a result it would never be particularly clear who was responsible for providing advice to the plaintiffs, many of whom never met the lawyer they supposedly retained to handle their lawsuit. This diffusion of responsibility would be attractive to unscrupulous players in this market. 

The scheme described by Professor Burch is complicated and there are a lot of players in the story. At the risk of oversimplifying, a guy named Blake Barber owned companies called Surgical Assistance and Medical Funding Consultants. The companies were associated with a crooked call-center operator, Vince Chhabra, who had connections with a medical records storage firm in India. Chhabra and his son, along with a guy named Ron Lasorsa, were principals in a D.C. entity called Alpha Law, which was permitted to have non-lawyer investors. Barber’s companies were in the business of factoring medical liens; that is, they purchased unpaid medical bills from surgeons at a discount and obtained a lien on the proceeds of any recovery by the patient/plaintiff. Some of the funding for the women’s travel expenses came from a litigation financing company called LawCash, which made non-recourse investments in the litigation pursued by the women in exchange for a sizeable share of the proceeds. With all these hogs at the trough, the women ended up with next to nothing. For example, when one of the women finally found a good lawyer to solely represent her interests, he had to resolve numerous liens (p. 237):

Barb had borrowed $1,700 to cover food and expenses during her trip to Broward Outpatient. But the loan was for $4,000; Blake’s company, Medical Funding Consultants, received $2,300, and Weintraub tacked on $536 for fees and overnight shipping. Now he wanted $9,072 from Barb.

The book raises a number of powerful critiques of mass tort claim processing, but I will focus on a few interrelated themes: People rely on the tort system as a safety net to correct for regulatory failures like allowing this defective mesh on the market in the first place (pp. 288-89); understandably they expect that the facts and circumstances of their cases will have something to do with the redress they obtain; in fact, however, they receive a kind of mass-produced simulacrum of individualized justice; then, to make things even worse, because of its scale and decentralization, the system is vulnerable to exploitation by a whole panoply of crooks and grifters; thus, what good is produced by aggregate litigation is swamped by the collateral bads created by the greedy actors who take advantage of systemic vulnerabilities. 

As a federal district judge put it, at the sentencing of one of the promoters of the scheme (p. 257):

[T]he whole notion that a pile of money is created to compensate people who have been—they are treated with this defective, arguably defective device, and the locusts descend, and I am not leaving out the legal profession here. Lawyers, middlemen, the financers. I mean, it is really a very upsetting picture. It is a very upsetting picture. Almost as if the patients themselves are mere pawns. Afterthoughts.

“Afterthoughts” would have been a good alternative title for the book. While the remainder of this short review will discuss systemic problems with mass tort adjudication, perhaps the most important contribution of Professor Burch’s book is to insist that the individuals caught up in the system never be merely afterthoughts. 

                  1.             Individual justice vs. mass processing

This is one of the most familiar themes in mass tort scholarship, and one that Professor Burch is well familiar with, having written some of the leading articles. In the terms made familiar by Richard Nagareda, the arc of mass tort litigation has been from adjudication to administration. Plaintiffs’ lawyers assemble gigantic inventories of cases; scramble for leadership positions on steering and executive committees, sometimes to influence the litigation and help out their clients, but also to become entitled to common benefit fund fees; negotiate with the defendants, who are interested in finality, certainty, and “global peace” above all, and really just want a number they can take to capital markets; and dicker over the design of a claims resolution facility, which will probably employ some type of grid or matrix to set compensation amounts based on certain generic, easily ascertainable factors. Not every MDL looks like that, but it’s been the paradigm for the resolution of most mass litigation since the procedure began to emerge in the 1990s. 

The reason for this is well understood, and it’s not a deficiency in Professor Burch’s book that she does not provide the backstory of modern mass tort litigation. Her book is aimed largely at a non-lawyer audience. Lawyers will immediately recognize the source of the problem: In legal-doctrinal terms, most of the cases that get fed into the mass claims processing factory are tort actions, requiring proof of fault and causation, both of which demand extensive fact discovery, medical and scientific experts, and years of motions practice (Daubert and summary judgment being the main hurdles for plaintiffs to overcome) before having a shot at a trial. As Professor Burch notes, regarding an earlier mass tort, “a single case over the heart attack–inducing drug Vioxx (which was billed as a pain reliever) cost lawyers between $1 million and $1.5 million to bring” (p. 30). There’s simply no way for most individual claimants and their lawyers to finance litigation of that sort, which creates almost irresistible pressure toward aggregation. Following the Supreme Court’s Amchem and Ortiz decisions, concluding that the disparities in causation and damages claims made it practically impossible to satisfy the certification requirements of Fed. R. Civ. P. 23(b)(3), plaintiffs’ lawyers latched onto the federal multidistrict litigation (MDL) statute, 28 U.S.C. § 1407, to obtain the economies of scale necessary to finance and prosecute these complex tort claims.  

MDLs have their own characteristic failure modes, including the well known “MDL vortex,” which sucks in cases for pretrial litigation but then resists remanding them to the federal district or state court where they originated. Professor Burch alludes to this on pp. 157-58, referring to individual litigation brought by a scrappy young Arkansas lawyer: 

Most small-firm lawyers know enough about multidistrict litigation to avoid it. Like a whale that spots a plankton bloom, the MDL inhaled cases like Jerri’s in Arkansas, Barb’s in New Hampshire, and Sharon’s in South Carolina. It sucked them into one huge maw in West Virginia, controlled by a handful of lawyers empowered to speak for women they’d never met. Key facts and evidence could get lost in the mash.

Attorneys like J.R. and Ray would be unable to extricate Jerri’s case from the slurry. And if opposing counsel made an insulting settlement offer, there was no way to threaten to try her case. They’d be stuck. Historically, MDL judges have returned only 1 percent of cases to the place where the suit was originally filed.

The passage refers not only to the MDL vortex but to the agency problems that afflict so many plaintiffs in mass tort litigation: Although in theory all actions in an MDL retain their individuality (unlike a member of a class action), the women in the pelvic mesh MDL in West Virginia were represented “by a handful of lawyers empowered to speak for women they’d never met” – i.e. leadership counsel. The assumption underlying the lawyer-client relationship is that the client sets the agenda and the lawyer communicates with the client about the means by which the client’s objectives are to be pursued (Model Rule 1.2(a)). For plaintiffs represented by lawyers who were not part of the leadership group, however, any meaningful exercise of voice and control over the litigation is largely illusory. The agenda is set by the plaintiffs’ executive committee and all the myriad “means” decisions in connection with claims to be asserted, discovery, motions, choosing bellwether plaintiffs, and the like, are made by lawyers ultimately reporting to the executive committee. As a result, plaintiffs are subjected to mass processing, treated as a file number or a set of exposure and damages criteria to be blended into a settlement package with the defendant.

One of the most important contributions of Professor Burch’s book is to remind all of us who teach or write about mass torts that, hang on, these “inventories” are made up of real people, each with their own story to tell, who have been wronged by the products or services marketed at them in a  mass consumer society. The emotional hook comes from viewing mass tort proceedings from the point of view of three women who were initially injured by defective pelvic mesh, but then subjected to additional physical harms and offenses to their dignity by corrupt individuals and a broken system. 

From the perspective of the legal system, one of the structuring themes of mass tort litigation is the disjunction between the realities of large-scale claims administration and the expectations of many Americans, raised on generations of lawyer shows on television, of individualized treatment of their claims for redress:

Like most injured people, Barb Shepard and Sharon Gore expected it would be easy to hire a suit-and-tie lawyer who’d investigate their plight and then march into a courtroom to show a jury how a ring of con men had ruined their health on the heels of Big Pharma (p. 211).

The interaction between individual venality and systemic dysfunction is, to my mind, the most interesting intellectual issue raised by the book. But I’m a law professor, so it’s not surprising that I see it that way. For most readers, including the non-lawyer readers who are probably Professor Burch’s primary audience, the overwhelming reaction will likely be outrage that our legal system tolerates a succession of episodes of abuse and exploitation, seemingly without providing any meaningful redress. She writes (p. 266):

What was a woman’s body, a mangled vagina, lifelong incon­tinence, and the mental toll it all took worth? Could anything really make it right?

The question of whether anything could make a terrible loss right is, of course, present in individual tort cases as well as in aggregate litigation, but the scale and impersonal quality of these proceedings, combined with the loss of individual client voice and control over the handling of the claims by counsel, deepens the sense of alienation from the legal system’s aspiration to justice. 

                  2.             Mass tort adjudication downstream of social injustice.

The three women in Professor Burch’s story might never have received defective pelvic mesh implants if regulators at the FDA had done a better job of pre-market approval (compare pp. 13-14). However, this would require increasing the budget of the agency and giving it more power relative to medical device manufacturers, not a politically popular position. When it became apparent that the women were at risk of complications arising from the defective mesh, a decent, publicly funded health care system (as would be familiar to any resident of Canada, the U.K., New Zealand, or . . . oh, I don’t know – any civilized country) would pay for an operation to remove it. There would be no need for the shady network of lien-factoring companies, surgical clinics, PI lawyers, and litigation funders to provide financing for the removal surgery. (Not to mention there would be no financial pressure to perform unnecessary removal surgery.) If we had a publicly funded legal aid system for civil litigants, PI lawyers would not charge contingent fees now approaching a market standard 40% rate, calculated on the gross recovery before deducting expenses, and not taking into account any financing costs incurred by the plaintiffs. Or perhaps there could be a state-funded compensation scheme for people injured by accidents or defective products, comparable to the New Zealand Accident Compensation Commission. Instead, and in the great American tradition of rugged individualism and self-reliance, people injured by the products and services of a mass consumer society are told, KMAGYOYO.^[1]

Given individualism, self-reliance, and all that, what should be the role not of the state, but of intermediary institutions, such as the medical and legal profession, in protecting the rights of individuals such as the women in this story? Can we trust doctors not to perform medically unnecessary removal surgeries and lawyers not to advise or allow their clients to enter into ruinously expensive financing arrangements to get medical care they could have obtain otherwise (in several cases mentioned in the book, through private health insurance that would have paid for the surgery)?  

This strategy runs into the decades-long decline of trust in professions. To be clear, while the next section will talk mostly about ethical failings by lawyers, the medical profession did not exactly cover itself in glory here either. The urogynecologists who performed the removal surgeries did not appear interested in asking too many questions about how it was that so many women were flying down to a temporary surgical clinic hastily thrown together in an office building. A moment’s thought would have led to the recognition that there must be someone coordinating the flights, hotel stays, and local transportation, so there must be someone locating patients all over the country and funneling them into these surgeries. How were they making money? Was it on the up-and-up? The doctors never seemed to trouble themselves with these questions, and were content to essentially perform assembly-line surgeries.

Professor Burch’s telling of the story highlights the fact that these women were absolutely on their own. One of the lawyers who was supposedly representing the women wrote what was later dubbed the “train wreck” email to the organizers of the scheme (pp. 72-73):

Today was the first time I spoke to each of [the clients]. I was retained by each within the last 48 hours. All three had surgery on 11/22/14; roughly ten (10) days before we were even retained.

This has turned into a total and complete train wreck.

I was told everyone was going to make every effort to have the patients/clients speak with me, Rhett, or any attorney here at our office, before the patients/clients signed the lien, and certainly before surgery.

I have been told several times no more surgeries would occur until the paperwork is complete.

Nothing has changed. In fact, things have worsened.

Now I am expected to sign something stating I, as the person’s attorney, received, reviewed, and explained documents prior to client signing. How is this possible if I am not retained as the person’s attorney until 10 days later?

This is very frustrating and we are all wasting too much time on a problem with an extremely simple solution >>>>>> Do not book flights, hotels and surgeries until an attorney has signed the “attorney acknowledgement.

The three women protagonists met each other in line at a CVS in Florida, waiting to fill prescriptions for pain meds after their surgeries; each of them had been told that they would be provided with a lawyer to sue the manufacturer of the mesh, but none had had any communications with a lawyer up to that point (p. 97). In some cases, the lawyers they had retained, via an electronic signature in a DocuSign packet, were co-counseling with an entity organized under the laws of the District of Columbia, permitting lawyers to practice in association with non-lawyer investors. The women had no idea that they had agreed that the D.C. entity would receive the lion’s share of the attorneys’ fees (p. 167). 

A magistrate judge in the West Virginia MDL against the mesh manufacturers described the scheme and expressed her outrage that a lawyer would advise a client to do this (p. 122):

“What I find appalling is that somebody would talk a woman into having a surgery that she might not need, tell her she needed to take a loan out to get it done because her insurance wouldn’t pay for it, and then charge her 30 percent to 50 percent interest a year, which I think is unconscionable. And if that’s happening, I call that unbridled greed. And in my mind that is absolutely unacceptable.

“And it blows my mind,” she finished, “that a lawyer would allow his or her client to get into that sort of situation.”

But, of course, there was no lawyer allowing, or not allowing, a client to do anything. These women were drawn into the scheme without anyone providing them advice or protection.

This leads to the “who will guard the guardians?” problem with respect to the lawyers. For a variety of reasons relating to funding, staffing, and the record-intensive nature of an investigation into this type of misconduct, state bar grievance procedures are not well suited to policing misconduct in mass tort litigation. District courts, however, tend to want to punt the responsibility onto state bar regulators. Here is the district judge in the West Virginia MDL (p. 142):

“I don’t really think the MDL has any connection or any requirement or duty to investigate the Chhabras or Law Firm Headquarters or PRGI,” she said. “If you believe that there’s been fraud committed in some way, you ought to report it to the appropriate agency and allow that agency to conduct an investigation.”

Most of the lawyers profiled in the book, with the exception of Mazin Sbaiti, who kept sending D.C. Bar ethics opinions to his partners (p. 117), did not seem particularly concerned about the possibility of professional discipline. The enforcement gap will remain a catalyst for sleazy behavior in MDLs if the courts supervising these proceedings do not take a more active role in monitoring the compliance of counsel with their professional duties. (A few judges have stepped up, including District Judge M. Casey Rogers in the 3M Combat Arms Earplugs MDL, who ordered disclosure of third-party litigation funding in that proceeding.) 

                  3.             The enshittification of mass tort representation – ABSs and TPLF.

The Canadian writer Cory Doctorow coined the term enshittification to describe the process by which a nifty new piece of technology, which initially made things better for users, works great until the owners of the technology figure out a way to make more money by abusing their users, who now have a difficult time disentangling themselves from the technology:

This is enshittification: Surpluses are first directed to users; then, once they’re locked in, surpluses go to suppliers; then once they’re locked in, the surplus is handed to shareholders and the platform becomes a useless pile of shit. From mobile app stores to Steam, from Facebook to Twitter, this is the enshittification lifecycle.

The American civil litigation system is far too decentralized for there to be an equivalent of Amazon or Google to single out for blame, but mass tort litigation is nevertheless somewhere in the middle of the enshittification lifecycle. First there’s something genuinely useful, like consolidation of cases raising “one or more common questions of fact” for pretrial purposes under 28 U.S.C. § 1407. Initially employed in some electrical-equipment antitrust litigation, the MDL statute was repurposed by enterprising plaintiffs’ lawyers to carry the weight of aggregate personal-injury litigation after Amchem and Oritz blew up class actions in the massive pending asbestos proceedings. Plaintiffs and defendants both perceived advantages to having a mechanism under which settlement could be pursued without having to go through the process of certifying a class. The Vioxx litigation marked the beginning of the modern era of MDLs, and it seemed like the advantages of this procedure for handling huge numbers of personal-injury claims would benefit everyone.

The logic of enshittification took over, however, and numerous participants in the system found ways to enrich themselves at the expense of the injured claimants the system was intended to serve. Professor Burch and others have written abouthow repeat players in mass tort adjudication are able to advance their self-interest by exploiting gaps in the rules and lax oversight by courts. Less well understood is the role of various contractors and support services, such as claims administrators, marketing firms, lead generators, claim brokers, and financing firms. 

On a simple model, which was formerly used in relatively modest-scale aggregate litigation, a local personal-injury law firm finances a marketing campaign, using print, billboard, radio and TV, and social media advertising to inform people that they may have a claim if they took XYZ prescription drug. Potential plaintiffs call a phone number and a call-center operator forwards their information to a law firm, where a lawyer or, more likely, a paralegal working under the supervision of a lawyer interviews the prospective client to determine whether they have a claim worth pursuing. The firm sends the prospective client an engagement agreement which may include a co-counsel provision under Model Rule 1.5(e), permitting the originating firm to share legal fees with a “handling” firm that will actually work up the case. The handling firm will file the complaint, conduct discovery, deal with pretrial motions, and potentially try the case. In an MDL, the district court will appoint lawyers to a steering committee, liaison counsel, and other leadership roles. In theory at least, there is an agency relationship, running from the client/principal through various lawyer/agents, all of whom owe fiduciary duties to the client: 

Client  originating law firm  handling law firm  leadership counsel

It should be apparent how the attenuation of decisionmaking authority and responsibility for communication creates opportunities for firms along the chain to act with diminished loyalty to the ultimate principal, the client. 

Each of the law firms may outsource some of the tasks involved in the acquisition and prosecution of claims. In modern mass tort litigation, including the pelvic mesh litigation that is the subject of this book, much of the contact with prospective clients occurs through non-lawyer “lead generating” and claims brokerage companies. Thus, the prospective client may never communicate with a lawyer at the originating law firm. This isn’t suppose to happen. Lawyers contracting with lead-generation services are supposed to have the same level of communication with prospective clients as they would if the client had walked in the office door. In reality, however, mass tort firms may harvest hundreds of signed-up client matters, which are then referred out to handling firms pursuant to co-counsel agreements. 

In this book, the mass-production model of aggregate litigation intersects with a relatively recent development in the American legal profession. One is the emergence of alternative business structures (ABS’s) as a form of organization. Most U.S. jurisdictions have adopted a version of ABA Model Rule 5.4, which prohibits lawyers from forming partnerships with nonlawyers or practicing law in the form of any entity in which a nonlawyer owns an interest. The District of Columbia has long been an exception, mostly to accommodate the sort of hybrid law firm/lobbying shops that are not uncommon there. Professor Burch refers to this as a “loophole” (p. 50), but it’s really just a different approach to regulating the delivery of legal services. The D.C. approach, which is now also recognized in Arizona and Puerto Rico, is simply more overt about the profit-making aim of law firms. The objection to the rule is that nonlawyer investors, not subject to the rules of professional conduct, will put a lot of pressure on lawyers to compromise their independent judgment, exercised as fiduciaries for clients. I have to say, however, that plenty of lawyers described in Professor Burch’s book had no trouble chucking their fiduciary duties out the window in the pursuit of greater profits, even without being part of an ABS. This doesn’t mean ABS’s don’t raise concerns, but I’m not as persuaded as Professor Burch that the “faux law firm” Alpha Law (p. 57) was enabled to exploit clients in the way it did simply because it was organized as an ABS under the D.C. rules. Blake Barber, the Chhabrias, and the other sleazy characters who orbited around Alpha Law could have done much the same thing outside of D.C.

The other development that attracts Professor Burch’s critical eye is third-party litigation financing (TPLF). She happened upon a living, breathing metaphor for a dodgy industry in the form of the unkempt general counsel of a consumer litigation funding company (p. 112):

LawCash’s lawyer, who’d soon turn sixty, looked decades older. With a belly that sagged over his belt, he was the kind of man you could picture chomping a cigar in a mustard-stained shirt. When judges criticized the company’s lending practices, calling the interest rates “obviously usurious,” he rushed to split hairs. Those weren’t loans; they were risky advances. “Lenders get paid back with a certainty,” he said. “We don’t know when we give someone a dime if we’ll ever get a penny back.”

Consumer litigation funding – sometimes called pre-settlement financing – is a way for claimants to monetize the value of a future claim, often but not exclusively for personal injury. One of the recurring objections to the industry is that the returns to the financing companies can be exorbitant (p. 238):

“We gave her $4,000 and are owed $9,000, which isn’t a lot for a seven-and-a-half-year investment. Our rates are much higher now,” said Weintraub. “That $4,000 would grow to $35,000.”

It was a glib remark that oozed with snark. J.R.’s blood boiled. He couldn’t believe the guy was joking around about charging personal injury victims like Barb $35,000 for a $1,700 loan.

There is some empirical evidence that most consumer TPLF transactions do not involve anything close to a $35,000 return on a $1,700 investment. This study also finds, however, that many claimants are represented by counsel who are actively involved in negotiating reductions in the return to funders (known as “haircuts”). The women in the story here, however, were mostly unaware that they even had entered into these funding agreements, let alone had diligent counsel capable of negotiating haircuts. 

To be clear, I am not arguing that ABSs and TPLF necessarily lead to enshittification. One could just as easily blame excessive contingent fees and lax enforcement of rules prohibiting for-profit lawyer referral services. From what I can tell as an outsider looking in, the lead generating business run amok is as much to blame as anything else. There seems to be a lot of money flowing into non-lawyer business that finance sophisticated mass tort marketing programs on social media – just type “Camp Lejune water” or “talc ovarian cancer” into Google and see what comes up – and the call centers and referral services are mostly unregulated. Under Model Rule 5.3, lawyers who contract with these services are supposed to “make reasonable efforts to ensure that” the contractor’s conduct is compatible with rules of professional conduct, but something tells me that not all plaintiffs’ lawyers, eager to get into the mass tort game, are equally careful with their outside contractors. 

* * *

Having thoroughly enjoyed reading the book, and sharing Professor Burch’s outrage at the abuses in the system, I find myself mostly agreeing with her bottom line (pp. 288-89):

Our tort system provides a safety net for millions of Americans who fall prey to products that slip through regulatory cracks. New mass torts prolifer­ate daily, but so, too, do Chhabra-like scams. Earnest plaintiffs’ lawyers like J.R. continue to chip away at injustice, but defusing ticking time bomb tactics requires that each of us has Jerri’s gumption and Barb’s doggedness: Research and question doctors and lawyers. Read the fine print in contracts and health forms. Beware of arbitration clauses. And spread the word.

Reform in this area is difficult, in part because of the observation in #2 above, that many of the problems with the mass tort system are downstream of weak regulation of prescription drugs and medical devices and a grossly inadequate social safety net to provide health care and unemployment compensation as a result of injuries that result from defective products. Given our reliance on neoliberal approaches to ensuring access to legal services, including contingency fees and TPLF, it is hard to resist the relentless process of enshittification. As Cory Doctorow says, “[t]he internet is a must-have, not a nice-to-have, a prerequisite for full participation in employment, education, family life, health, politics, civics, even romance.” Enshittification is enabled when users are locked into a platform. 

Our dysfunctional government regulation and thin-to-nonexistent social safety net locks Americans into the tort system for the deterrence of defective products and compensation of the resulting losses. That leaves lawyers, and for the most part their voluntary compliance with ethical norms, as the last line of defense against what happened to Sharon, Jerri, and Barbara. I wish that observation gave me more reason to feel optimistic.

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^[1] On the authority of Texas songwriter Hayes Carll, I believe this to be an acronym used in the Army, meaning “kiss my ass guys, you’re on your own.” Even if Hayes is making this up (and that’s the kind of thing he would do), it’s a useful expression that perfectly describes the attitude of American society to its less fortunate members.

Essay # 3 in our Book Symposium on Beth Burch’s The Pain Brokers, by Anthony Sebok (Cardozo)

                  The essays in this series will, I am sure, persuade readers that The Pain Brokers tells an important story with sensitivity and care.  One possible response to the story told by Prof. Burch is that it is both horrible but also a “one-off” — that it was the result of a combination of factors that are, thankfully, unlikely to recur with any frequency.  This response does not mean that readers should not be incensed, or that the actors involved should not be brought to justice (which did not happen) but that its occurrence does not demand an urgent or programmatic response.

                  I must confess that this was my response, and in this short essay I want to explore why I felt that way — and why I think I am only half right.

                  The most obvious reason why the story told in The Pain Brokers can be viewed as a “one-off” is that the most despicable wrongs suffered by the women victimized by the bad actors in the book were (thankfully) not typical for mass torts; even mass torts involving medical devices or pharmaceutical products.  The three women profiled by Burch (and, we must assume, many other women) suffered unnecessary surgeries because of the conduct of the professionals who were helping them sue the defendants. 

                  In a simple personal injury lawsuit, the wrongful loss suffered by the plaintiff is fixed by the time the lawyer enters the scene.  That is, although the consequences of a defendant’s wrongdoing may not be fully known until after a plaintiff engages a lawyer (or even after the plaintiff resolves their claim against the defendant), the causal forces that produce those consequences were set in motion when the wrong occurred, and should, in theory, develop independently of their lawyer’s conduct.

                  But in The Pain Brokers the women profiled by Burch suffered additional personal injuries as a result of the conduct of their lawyers and physicians.  Women were induced to have surgery in Florida, often in conditions inferior to what they could have accessed in their home states, for no other reason than to enhance the settlement value of their original, presumably meritorious, claims, and to create an investment opportunity for financiers who were coordinating with the professionals.

                  It would be tempting to take comfort from the fact that in the prototypical corrupt personal injury scheme, the worst that will happen is that a corrupt medical professional will find whiplash where there is none, or diagnoses an asbestos-related illness when there is none.  To be sure, the plaintiff still suffers — from loss of psychic well-being (especially if the fraudulent prognosis causes emotional distress) — but the loss in nothing like what the women in The Pain Brokers suffered.

                  And yet, I think it would be a mistake to take much comfort from the unique facts of the TVM litigation.  This is for a few reasons.  First, it must be acknowledged that whenever damages are paid by a culpable defendant for unsupportable claims — especially those produced by knowing fraud — less money is available for deserving plaintiffs with claims against the same culpable defendant.  Mass torts are resolved by settlement and/or bankruptcy (and sometimes both), and in either case there is a fixed amount of money to be shared among all who have been wronged.  A plaintiff with a good claim in liability who presents a false claim for damages simply takes money from someone who actually deserves more compensation.

                  Second, to the extent that the ability of defendants to pay all meritorious claims is elastic (which is unlikely), payments to plaintiffs with good claims for false damages claims increases the costs of goods for those who consume (or pay for) the product.  In the context of medical devices and pharmaceuticals, this is a cost borne by a health care system already under stress and distorted by perverse incentives.

                  But my concerns are more specific to the corruption of the relationship between client and lawyer revealed in The Pain Brokers.  Even had the women not suffered serious additional personal injury as a result of their decision to retain lawyers to sue the manufacturers of their devices, the suffered a violation of trust.  The questions I want to explore in the remainder of this essay are the following:  (1) What, precisely, were the ethical violations suffered by the clients, and (2) what steps, if any, could be taken to reduce the likelihood that those violations would occur?

                  Question One.  What, precisely, were the lawyers’ ethical violations, and how did they affect their clients?  The answer to this question is not simple.  On a superficial level, Burch supplies one answer.  For Jerri Plummer, one of the three plaintiffs Burch profiled, the law firm of McSweeney/Langevin committed malpractice (and, presumably violated the rules of professional responsibility in either Minnesota or West Virginia) in the course of representing her.  Burch described in great detail the collapse of Plummer’s suit against McSweeney/Langevin when it was sent to arbitration (a transfer that she fought up to the Eighth Circuit, to no avail).  According to Burch, the claims against McSweeney/Langevin settled for a nominal amount.

                  McSweeney/Langevin, based in Minnesota, was co-counsel with a D.C. firm called Alpha Law for at least a thousand of TVM cases, including Plummer’s.  Plummer also sued Alpha Law, and, according to Burch, secured a default judgement against it, which was worthless since the firm ceased operations in 2015 and its principals avoided responsibility for the liability.  Finally, many of the TVM cases were handled by Aimee Wagstaff, a member the MDL Steering committee (the “PSC”) and the trial team that secured an $18.5 million verdict on behalf of four TVM plaintiffs in federal court in West Virginia.  (https://www.wagstafflawfirm.com/18-500-000-00-boston-scientific-corp-transvaginal-mesh-verdict) While it is not clear whether Wagstaff represented Plummer, she represented Sharon Gore, one of the other women profiled in the book.

                  The Pain Brokers was not intended to be an analysis of the specific claims or potential claims brought by the injured plaintiffs against any of the lawyers mentioned in the book, and it is clear that many of the worst actors in the saga were not lawyers, but doctors and nonlawyer financiers.  Still, it is worth reflecting on the violation of the rules of professional discipline and the malpractice claims indicated by Burch’s account.

                  It makes most sense to think about the relationship of a client like Plummer or Gore to their lawyers as a pyramid.  At the bottom of the pyramid was Alpha Law.  It was the first lawyer they encountered.   At the next level was a firm like McSweeney/Langevin; they acted as co-counsel and liaison with the lawyers at the next level.   At the very top of the pyramid was a lawyer like Aimee Wagstaff, who was both on the PSC and responsible for arguing substantive motions, developing theories of the case, deposing witnesses, and, if necessary, going to trial.

                  It is worth noting that Burch’s account suggests that the lawyers at the top of the pyramid, like Wagstaff, were doing a good job.  At one point in the book, Burch noted that Aylstock, Witkin, one of the firms on the PSC, informed Barbara Sheperd, another plaintiff profiled in the book, that it had negotiated  a $241 million settlement on behalf of her and 4,110 other plaintiffs.  At another point, Burch noted that in 2016 Gore received $52,000 in net proceeds from a settlement with Boston Scientific negotiated by Wagstaff.  The lawyers at the top of the pyramid, if nothing else, were doing what they were supposed to do.

                  On the other end of the pyramid, the story was very different.  Alpha Law was not a typical firm.  As revealed in a complaint filed by another firm, it claimed to have been retained by 14,453 individuals with TVM claims, 1,444 of whom were likely to be fictious.  See Complaint Before the American Arbitration Association, AkinMears, LLP v. Alpha Law et al., July 5, 2017.  The plaintiffs who retained Alpha Law could not have understood that the firm did not, and had no intention, of providing legal advice to them.  This is obvious from the facts reported by Burch:  Alpha Law was comprised of non-lawyer partners who has created it with a lawyer who was a member of the D.C. Bar.  Alpha Law had an address in the District of Columbia, but all of its marketing and “law-related” services were performed in either Florida or by overseas call-centers.  There is nothing in Burch’s book that suggests that any lawyer associated with Alpha Law spoke to any Alpha Law client.  According to Burch, Alpha Law contracted for leads with a company owned by one of Alpha Law’s non-lawyer partners.  Once a person qualified for representation (that is, stated that they had received one of the defendants’ medical devices), the non-lawyer marketer would send by email engagement letters from Alpha Law and its co-counsel (such as McSweeney/Langevin) for electronic signature.

                  Did Alpha Law comply with the rules of professional responsibility?  Burch assumed — as did Alpha Law, apparently — that the only jurisdiction under whose it jurisdiction it fell was D.C.  But that is not obvious.  It can be argued that its D.C.-barred lawyers could have been held responsible in both D.C. and Florida for any conduct that violated Florida Rule 4-5.3 (Responsibilities Regarding Nonlawyer Assistants).  In any event, it is hard to see how Alpha Law was operating in compliance with the D.C. Rules.  In 2014, when Alpha Law was retained by 14,000 women, the District of Columbia permitted — uniquely — non-lawyers to partner with lawyers.  See D.C. Rule 5.4(b) (italics added):

A lawyer may practice law in a partnership or other form of organization in which a financial interest is held or managerial authority is exercised by an individual nonlawyer who performs professional services which assist the organization in providing legal services to clients, but only if:

(1) The partnership or organization has as its sole purpose providing legal services to clients;

(2) All persons having such managerial authority or holding a financial interest undertake to abide by these Rules of Professional Conduct;

 (3) The lawyers who have a financial interest or managerial authority in the partnership or organization undertake to be responsible for the nonlawyer participants to the same extent as if nonlawyer participants were lawyers under Rule 5.1 . . . .

                  Based on the facts reported in The Pain Broker, it would appear that Alpha Law did not satisfy D.C. Rule 5.4(b) in at least three ways.  First, the non-lawyer partners — who lived in Florida and apparently never communicated with any client — did not “perform professional services which assist[ed] the organization [Alpha Law] in providing legal services”.  They provided capital and marketing.  Second, given that the some of the non-lawyer partners owned the marketing companies that were compensated by Alpha Law if a potential client engaged Alpha Law, the non-lawyer partners probably violated D.C. Rule 1.7(b)(4):  “[A] lawyer shall not represent a client with respect to a matter if . . . [t]he lawyer’s professional judgment on behalf of the client will be or reasonably may be adversely affected by the lawyer’s responsibilities to or interests in a third party or the lawyer’s own financial, business . . . interests” (emphasis added).  Recall that D.C. Rule 5.4(b)(2) imposed on the non-lawyer partners in Alpha Law the same duties it imposed of the lawyers practicing in the firm.  Third, if the call centers in Florida were engaging in direct solicitation of the potential clients — by calling the women profiled by Burch (as they seem to have done) — then all the partners of Alpha Law could be responsible for the violation of D.C. Rule 7.1(e) through the conduct of their non-lawyer partners, who managed the call centers. (D.C. Rule 7.1(e) states: “[n]o lawyer or any person acting on behalf of a lawyer shall solicit or invite or seek to solicit any person for purposes of representing that person for a fee paid by or on behalf of a client. . . .”)

                  In the middle of the pyramid are firms like McSweeney/Langevin.    It is not clear what function they served.  According to Burch, under the fee-splitting agreement between the Alpha Law and McSweeney/Langevin, the D.C. firm took 85% of the legal fee paid to the Minnesota firm.  Given how little McSweeney/Langevin would earn, it is no surprise that the firm apparently did very little work on the cases.

                  It is ironic, then, that it was McSweeney/Langevin that bore the brunt of the clients’ anger at the debacle described in The Pain Brokers.  J.R. Baxter, the Arkansas plaintiffs lawyer who was the closest thing to a hero in Burch’s book, sued McSweeney/Langevin.  But his claims against the Minnesota firm are a distraction from the main story of the book.  Burch focused on the fact that the McSweeney/Langevin engagement letter — which was sent to the client, Plummer, from Florida, by agents employed by a partner of Alpha Law — contained an arbitration clause.  But that is neither unusual nor obviously a bad thing.  Many lawyers require their clients to submit to binding arbitration.  It certainly is permitted by the rules of professional responsibility.

                  More to the point, however, is that the charge against McSweeney/Langevin was very weak.  In fact, it seems to me that McSweeney/Langevin would have prevailed had the case gone to a court and not arbitration.  Plummer, the client, claimed that McSweeney/Langevin did not protect her from predatory doctors and financiers.  Her negligence suit asserted that the agreement she signed with the New York litigation finance firm that forwarded the money for her unnecessary operation required McSweeney/Langevin to provide her with advice.  To prove this point, she submitted a document, signed by a lawyer from the firm, that stated “I further certify that I have received a copy and reviewed the . . . Funding Agreement, and explained the terms to my client.”  The document, was signed after she had already agreed to the funding and had been operated upon.

                  The problem with the suit against McSweeney/Langevin is that it is not clear that the lawyers owed Plummer a duty to protect her from predatory doctors and financiers, notwithstanding the letter they fraudulently signed.  The firm promised to co-counsel with other law firms in her case in the MDL.  Arguably, it did that (although that did not require them to do very much).  Whether it also had a duty to stop Plummer from signing predatory funding agreements — or agreeing to ill-advised and unnecessary surgery — is much less clear.  The caselaw suggests that absent an explicit agreement to extend the scope of representation, there is no duty.  See, e.g., Francis v. Mirman, Markovits & Landau P.C., No. 029993/2010 (N.Y. Sup. Ct. 2012). Even less clear (for purposes of the malpractice suit) is causation.  There is little reason to believe that anything McSweeney/Langevin could have done would have stopped Plummer from submitting to the predations described in The Pain Brokers.  While Burch reported Plummer’s complaint alleged a “conspiracy to benefit at her expense”, it is not clear how McSweeney/Langevin, by accepting an invitation from Alpha Law to co-counsel, took any material steps to defraud Plummer.  In a sense, all they agreed to do was to be “a potted plant” while others in the MDL litigated, in exchange for a 15% share of her contingent fee.  That may not be what our students lawyers aspire to do when they go to law school, but it is not unethical.  See, e.g., Lerner v. Laufer, 819 A.2d 471 (N.J. App. Div. 2003).

                  To summarize, the plaintiffs profiled in The Pain Brokers were ill-served by the network of lawyers in the pyramid described above, but not in the same way by each lawyer.  It would appear that some lawyers, at the top of the pyramid, operated in exactly the way the system intended, while the at the next level of the pyramid (the middle, as it were) the lawyers operated in ways which the system may not celebrate, but tolerates.  Finally, at the bottom of the pyramid there were lawyers and law firms with non-lawyer partners that probably operated in violation of the even the most permissive rules allowed by the system.

                  Question Two.  This leads to the second question which I promised to address, although space constraints leave little opportunity for a complete answer.  Does the debacle exposed by The Pain Brokers suggest that this was more than a “one-off”, and if so, what could be done to prevent the pathology it revealed? 

                  Clearly, the ecosystem described in The Pain Brokers can persist — and probably does persist — even in the absence of the unique facts of this tort.  In some ways, what happened in the TVM mass tort happened in asbestos in the 1970’s and ’80’s.  Mass torts, by definition, depend on mass claiming, and mass claiming is not cost effective if done in a bespoke, or custom fashion.  The actors at the bottom of the pyramid serve a necessary function, which is to identify reasonably deserving plaintiff and to create the conditions under which other, more specialized, actors can ascertain which of those plaintiffs are deserving, and how much they are owed by the defendants whose conduct wrongfully injured them.

                  The question is how to insure that bad or careless actors at the bottom of the pyramid do not take advantage of the system’s necessary tolerance for imprecision.  Some might say that the best prophylactic against the Alpha Laws of the mass tort world is to reject the move made in D.C. and wall off lawyers from non-lawyer partners and their unprofessional motivations.  This ignores the fact that there is a good chance that, had the D.C. rules been properly interpreted and applied, much of what was reported in The Pain Brokers would not have been possible. 

                  But that is not where I want to end this inquiry.  I think that the pyramid described above needs to be examined at every level.  Why was it economically feasible for firms like McSweeney/Langevin to exist?  Recall that, in my opinion, McSweeney/Langevin probably breached no duties to its clients, or, if it did, it caused no compensable injury.  But that is not the end of the inquiry.  Why was it practicable and profitable for potential clients, like the three women Burch profiled, to retain firms in the middle of the pyramid, given that they seem to have contributed so little to the legal process?  In fact, it seems that their chief contribution was to obscure and provide camouflage for firms at the bottom of the pyramid like Alpha Law.  Is the existence of firms in the middle (like McSweeney/Langevin) an unintended consequence of the move from class actions to MDLs?  Would the mass tort ecosystem work better were the procedural kludge that these firms provide — a result of the hostility of the courts and the defense bar to class actions — was unnecessary?  In other words, would firms like McSweeney/Langevin make any economic sense if it were easier to certify and pursue class actions for personal injuries caused by defective products?

                  And finally, what are the duties of the lawyers at the top of the pyramid?  There is nothing in The Pain Brokers to suggest that the lawyers in the PSC committed any wrongdoing, and, as I noted above, the results of their efforts were generally positive for the plaintiffs.  But should these lawyers have done more to inquire into the character and conduct of the firms lower down the pyramid?  Even if the rules of professional responsibility do not require their vigilance, The Pain Brokers suggests that it would be prudent for more attention to be paid by those at the top to what is happening down at the bottom.

When you think of RFK, many things might come to mind. His role as JFK’s campaign manager in 1960. His tenure at Attorney General. His ill-fated 1968 presidential campaign. His bitter rivalry with LBJ.

His time as a Senator from New York gets relatively less attention. Of course, he only held that job for three-and-a-half years. In my research on Birch Bayh, though, I’m working through many of RFK’s Senate speeches or statements on constitutional issues and I am finding them very perceptive. I’ll document some of these findings in the article that I’m working on now. Compressing this into a blog post will be too difficult.

I have the new Courts Law essay, reviewing Elizabeth Earle Beske, Article III’s Constraints on the Legislative Power, __ Wm. & Mary L. Rev. __ (forthcoming 2026), which draws some interesting connections among recent limits on standing, Bivens, Lochner, and when Congress has room to legislate.

Highly recommended, as the kids say.

Essay # 2 in our Book Symposium on Beth Burch’s The Pain Brokers, by Brooke Coleman (Seattle).

We live in a time when much is cast in binary terms. In our politics and culture, you are either with us or against us. Unsurprisingly, this black-and-white thinking can even seep into our academic discourse. A place where nuance and grey should dominate can also become a place where, increasingly, we are compelled to pick a side. In civil litigation, the standard narrative is that there are the good guys—the plaintiffs—and the bad guys—the defendants. With respect to the judges, we have suspicions about the “republican appointed” judges while having more confidence in the “democratic appointed” judges. And when a case is won by the so-called good guys, we assume that the individuals who suffered—on whose behalf the case was brought—receive the compensation and remedy they are due. This is, of course, too simplistic a reflection, but it contains multitudes. In a complex civil justice system, we often yearn for simple truths and categories, even when that simplicity is impossible. 

One of the many things I have always respected and appreciated about Elizabeth Burch’s scholarship is that she approaches her work without such blind commitments. She seeks the truth of what she is seeing, without kowtowing to a particular position along the way. This was evident in her traditional academic scholarship, and it is even more apparent in her current work, The Pain Brokers: How Con Men, Call Centers, and Rogue Doctors Fuel America’s Lawsuit Factory. As I read her book, I was disgusted by what she portrayed, embarrassed that our profession could give life to such a grift, and disappointed that the systems and rules in civil litigation couldn’t do more to protect the women who were victimized. At the same time, though, I found the book so oddly refreshing. Burch did not stake out a simple solution or set of characters. She did not hand out white hats to the good guys and black hats to the bad guys. There were no such characters. Everyone was portrayed as the complicated, real, and messy humans that we all are. So, while the book’s contributions are many, I want to focus on this small slice of what the book does so well. By disrupting some rather simplified narratives about the civil justice system, Burch’s work helps us better understand the system’s complexity and how, while not always obvious or straightforward, improvements are possible.

Burch achieves this disruption in her book by flipping common tropes in civil litigation on their head. One such trope is that defense attorneys, especially those representing large, powerful corporations, wear the black hats. After all, they are tasked with defending some truly galling and dangerous corporate behavior. What Burch does so well is to remind us that these individuals, even when representing a client we might not admire or agree with, are still professionals who have taken an oath to uphold the rule of law. In the main, these lawyers seek truth and work through the justice system with integrity and care. This reminder is reflected beautifully in Barbara Binis, a former partner at Reed Smith, who represented American Medical Systems in the complex vaginal mesh multidistrict litigation that was the launching pad for the travesties outlined in Burch’s book. In the simple narrative, Binis represented the bad guys—the ones who manufactured and distributed the very mesh that had caused negative health consequences for so many women. Yet, through her work defending that same client, Binis unraveled key pieces of the central scheme in Pain Brokers. What Binis discovered was a labyrinthine conspiracy to lure women into unnecessary and dangerous surgeries under destructive financial circumstances, all so that a slew of shady individuals could profit from the grift. Binis pursued these individuals and worked to discover what had transpired, certainly in an effort to help her client, AMS. That, after all, is what she was hired to do. But she also did this work in a way that allowed others to pick up the thread and keep pulling. She was doing the truth-seeking that we tend to idealize in our civil justice system, except she wasn’t the noble plaintiff’s attorney. She was working for the other side.

Another narrative that Burch disrupts is that plaintiffs recover giant awards in complex litigation, especially those involving mass torts. While some certainly do, Burch’s prior work has already shed light on the fact that many plaintiffs whose cases are swept up in multidistrict litigation not only lose control of their claims but may also recover very little. This is in contrast to the significant fees that lead attorneys garner in such blockbuster cases. In the case of pelvic mesh, for example, Burch details that of the $11 billion in settlements, lead plaintiffs’ attorneys received $366 million in common benefit fees, while the actual average individual plaintiff stood to receive only $40,000; an amount that would pencil out to even less once fees and costs were deducted. In contrast to the big headlines that certain verdicts garner, Burch’s book is a reminder that the actual payouts for many plaintiffs are much smaller. 

Burch, relatedly, reveals aspects of the civil justice system we might overlook because we assume they function well. For example, in complex litigation, we tend to focus on the proceedings as they unfold before the judge. Burch’s book shows that, in addition to questions about how the money is distributed once a case is settled, we should also ask how the claims originated. Pain Brokers provides an extreme example of how people with ill intentions can manipulate the system. In this case, private information about women who had vaginal mesh implants was wrongfully passed on to shady individuals who weaponized that information against those same women. Women received calls from people who had frighteningly accurate information about their surgeries, and it led so many women to trust what came next. They were tricked into signing away rights, entering into outrageous loans, and worst of all, receiving surgeries that were not medically required. All this harm arose from an effort to find plaintiffs for lawsuits that would result in massive financial gain for everyone in the enterprise, including lawyers, doctors, and those selling the information. The ones left out were the women who were actually harmed and had claims. Running counter to our narratives of the plaintiff as the protagonist, Burch centers the often overlooked behind-the-scenes actors. 

However, even as Burch subverts the narrative that the actual plaintiffs recover hefty amounts and that the litigation process can be harmful to those it is ostensibly meant to protect, she simultaneously challenges the narrative of a greedy, high-fee recovering lawyer through her focus on J.R. Baxter. There, we find a salt-of-the-earth, talented plaintiff’s attorney who does right by his clients and the civil justice system. J.R. is not the high-powered, flashy lawyer that we tend to conjure in popular culture. Instead, like Binis, he is a professional who doesn’t just do his job; he does it well. Baxter’s efforts to help one of the women taken by this scheme, Jerri Plummer, are a strong antidote to the book’s otherwise dismal take on people’s humanity. Despite the challenges in Plummer’s case, Baxter sees the case through with dignity and integrity. And while he faces many barriers in helping his client, including collecting on the $2.5 million verdict he obtains, Baxter is the model for how a lawyer should be. He is honest, earnest, hardworking, and fair. And he put his client’s interest at the forefront of everything he did, even when it was difficult and seemed hopeless.

Burch is certainly not alone in her ability to speak truth to power by challenging standard tropes and reflecting unpopular truths. In civil procedure scholarship, she is in good company with many other scholars who challenge our default understanding of the civil justice system by, for example, focusing on state courts, especially lawyerless ones. In Pain Brokers, Burch beautifully expands on this kind of work by forcing readers to confront, in no uncertain terms, some of the most distasteful aspects of our civil justice system. She does not generalize and does not shy away from disrupting an either-or approach to the many complexities of that system. Yet even in the face of these harsh realities, the book strikes a hopeful tone by appealing to our deepest sense of humanity. There are no simple answers, but when we all look out for one another in the purest way, things may still be imperfect while also being better. That is the type of disruption to our current state of being, both within and without the civil justice system, that is sorely needed and exceedingly welcome.