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The third chapter describes how the the re-definition of the ECJ’s role from the 1960s onwards has affected its procedural and organisational law. It is well known that through decisions such as Van Gend en Loos and Costa v ENEL, the ECJ contributed to changing its mandate: from protecting the interests of the Member States to aiming to establish EU law as an autonomous and effective legal system. This chapter tells the story of how the Court’s procedure, organisation and decision-making was adpated to effectively exercise this new role. The chapter shows in detail the vast transformation the Court’s organisation and decision-making has undergone. It explains how the role of the ECJ judge was developed from state representative to neutral expert, how an inner circle of ECJ participants gradually formed that plays a central role for the acceptance and dissemination of the Court’s case law and which procedural mechanisms were devised to make ECJ decision-making more hierarchical in order to foster and maintain consistency in the Court’s case law.
Because hard-and-fast formal rules are scarce and ethical obligations are murky, repeat players like lead plaintiff and defense attorneys can strategically play for “rules” (the shorthand term for practices that will tip the scales in their favor in future cases) in areas that affect what matter to them most. The chapter opens with Lance Cooper’s allegations in the General Motors Ignition Switch Litigation. He claimed that lead plaintiffs’ lawyers settled all their own cases confidentially before trial and cut a secret deal with GM to limit its financial exposure if plaintiffs won a big verdict. Cooper’s allegations give life to data that reveals a world open to exploitation: few rules, little oversight, multimillion dollar common-benefit fees, and a push for settlement can tempt repeat players to fill in the gaps in ways that further their own self-interest. Connected lawyers form their own groups, enforce norms, and financially sanction defectors much like a cartel would. This chapter’s empirical analysis confirms that repeat players populate plaintiff and defense leadership positions, and its social network analysis reveals that no matter what measure of centrality is used, a key group of attorneys maintains their elite position within the network and may disproportionately impact settlements.
Mass-tort lawsuits over products like pelvic and hernia mesh, Roundup, opioids, talcum powder, and hip implants consume a substantial part of the federal civil caseload. But multidistrict litigation, which federal courts use to package these individual tort suits into one proceeding, has not been extensively analyzed. In Mass Tort Deals, Elizabeth Chamblee Burch marshals a wide array of empirical data to suggest that a systematic lack of checks and balances in our courts may benefit everyone but the plaintiffs - the very people who are often unable to stand up for themselves. Rather than faithfully representing them, plaintiffs' lawyers may sell them out in backroom settlements that compensate lawyers handsomely, pay plaintiffs little, and deny them the justice they seek. From diagnosis to reforms, Burch's goal isn't to eliminate these suits; it's to save them. This book is a must read for concerned citizens, policymakers, lawyers, and judges alike.
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