Article by Robin J. Effron
Within the past decade, two large-scale catastrophes—the terrorist attacks of September 11, 2001, and Hurricane Katrina—have been the recent laboratories of new congressional provisions for the federalization and aggregation of mass tort claims. In the case of September 11th, the litigation has been shaped by the Air Transportation Safety and System Stabilization Act (ATSSSA), an aggregation device that Congress devised specifically to address that particular catastrophe. The Hurricane Katrina litigation has seen the use (and attempted use) of the Multiparty, Multiforum Trial Jurisdiction Act (MMTJA), an event jurisdiction device of general application that Congress established in 2002. This Article explores three aspects of postcatastrophe litigation where the consolidation of cases or the statutes that govern the consolidation of such cases raise issues about how to think about “disaster litigation” as a singular category. After providing a brief summary of the paths of In re September 11th Litigation and In re Katrina Canal Breaches Litigation, this Article demonstrates that when the boundaries of federal jurisdiction are shaped by reference to events, this affects how cases may be consolidated, particularly with respect to Congress's degree of specificity in naming an event as the organizing principle of jurisdiction. These two federal statutes challenge courts to consider how closely, as a matter of law, federal jurisdiction based on the ATSSSA and the MMTJA and the consolidation of cases must be linked under these respective statutes. The Article then turns to a discussion of the role that courts of appeals play in determining the boundaries of federal jurisdiction and consolidation for disaster litigation. The Article ends with a discussion of the practical and administrative concerns of consolidated disaster litigation. I argue that the September 11th and Canal Breaches cases show that there can be a problem for judges and litigants of sorting common from uncommon issues in the context of a district-wide consolidation organized around an event.
About the Author
Robin J. Effron. Professor, Brooklyn Law School. B.A. 2001, Columbia University; J.D. 2004, New York University School of Law.
Citation
82 Tul. L. Rev. 2423 (2008)