On May 27, 2022, the Bolch Judicial Institute of Duke Law School hosted the inaugural McGovern Symposium on Civil Litigation. Throughout the morning, scholars, judges, and friends of Professor Francis McGovern gathered to discuss articles published in the “Innovations in Complex Litigation” edition of Law and Contemporary Problems. Attendees shared commentary and ideas, and, in homage to Professor McGovern’s spirited approach to problem-solving, engaged in lively discussions about challenges facing the field and the future of complex litigation. Lynn A. Baker, Elizabeth Cabraser, and Robert Klonoff, who served as editors for the special edition of the journal, guided the discussion.
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The experience of interacting with Francis McGovern taught all of us profound and unforgettable lessons: that the law depends on people for its development and enforcement, that the law is an essentially human endeavor, and that respect and understanding for others is essential to its operation.
— Elizabeth Cabraser and Robert Klonoff, L&CP Vol. 84 No. 2, page 8
Panel 1: Managing Mass Torts
Presenters & Articles
Prof. Teddy Rave, University of Texas School of Law
A Hub-and-Spoke Model of Multidistrict Litigation
Prof. Brian T. Fitzpatrick, Vanderbilt Law School
Many Minds, Many MDL Judges
Dean Troy A. McKenzie, NYU School of Law
Internal and External Governance in Complex Litigation
Prof. Samuel Issacharoff, NYU School of Law
Rule 23 and the Triumph of Experience
Moderator: Hon. Paul W. Grimm, U.S. District Court, District of Maryland
McGovern acknowledged that joint action of the sort he prescribed did not come about solely from the goodwill and benevolence of the players in mass litigation. Instead, it required some form of coercion—understood practically as cooperation born of pressure “emerg[ing] from a search for equilibrium among the parties”—that might involve a mix of legislation, individual litigation, class actions, or bankruptcy.
— Troy A. McKenzie, L&CP Vol. 84 No. 2, page 207
Panel 2: Claims Resolution Facility Design & Innovation
Presenters & Articles
Prof. Lynn A. Baker & Prof. Charles Silver, University of Texas School of Law
In Defense of Private Claims Resolution Facilities
Prof. Richard Marcus, UC Hastings College of the Law
A Legend in His Own Time and a Fixer for Mass Tort Litigation
Prof. Judith Resnik, Yale Law School (Virtual)
Mature Aggregation and Angst: Reframing Complex Litigation by Echoing Francis McGovern’s Early Insights into Remedial Innovation
Moderator: Hon. Lee Rosenthal, U.S. District Court, Southern District of Texas
Early on, McGovern was the ‘mature’ person who focused on how to generate remedies that would be workable, even if not enduring forever. He aimed to help disputants in the here and now.
—Judith Resnik, L&CP Vol. 84 No. 2, page 236
Panel 3: Rule 23 Creativity
Presenters & Articles
Prof. Stephen B. Burbank, University of Pennsylvania Carey Law School (virtual) & Prof. Sean Farhang, UC Berkeley School of Law
Class Certification in the U.S. Courts of Appeals: A Longitudinal Study
Prof. Myriam Gilles, Cardozo Law & Gary Friedman, Friedman Law Group, LLP
MDL Drano: Rule 23-Based Solutions to Mass Tort Buildup
Moderator: Hon. Denise Page Hood, U.S. District Court, Eastern District of Michigan
Indeed, Francis’s career in the theory and practice of alternative dispute resolution (ADR) is compelling evidence against the notions that the field is epistemically shallow and that it offers second-class justice.
—Stephan B. Burbank & Sean Farhang, L&CP Vol. 84 No. 2, page 73
We hope you can join us for the next McGovern Symposium on Civil Litigation in 2023. Subscribe here to receive occasional updates on this and other programs from the Bolch Judicial Institute!