- 34

NOTES

Speech delivered at Touro College Law School,

October 19, 1988.

Judge, United States District Court, Eastern

District of New York; Adjunct Professor of Law, Columbia University Law School. I deeply appreciate the help of Peter Woodin, Columbia University Law School '88.

1/ Fed. R. Civ. P. 11. A Third Circuit Committee estimates that Rule 11 sanctions are awarded almost three times as often against plaintiffs as against defendants, and nine times as often against civil rights plaintiffs as against civil rights defendants. Report of the Third Circuit Task Force on Federal Rule of Civil Procedure 11 (in progress 1988). See also Cavanagh, Developing Standards Under Amended Rule 11 of the Federal Rules of Civil Procedure, 14 Hofstra L. Rev. 499

35

(1986); Vairo, Report to the Advisory Committee on Amended Rule 11 of the Federal Rules of Civil Procedure, Sept. 1987.

Despite the negative experience of the federal courts

with this device, New York has adopted essentially the same approach, with some limits to ensure that it operates in a less Draconian fashion. See "Top State Court Adopts Sanctions

Rules, N.Y.L.J., Oct. 26, 1988, at p. 1, col. 4.

2/ See, e.g., Weinstein, After Fifty Years of Federal Rules of Civil Procedure Are the Barriers to Justice Being Raised?, U. Pa. L. Rev. (forthcoming 1988) (hereinafter After Fifty Years). C.f., Weinstein & Weiner, Of Sailing Ships and Seeking Facts: Brief Reflections on Magistrates and the Federal Rules of Civil Procedure, St. John's L. Rev. (forthcoming 1988) (hereinafter Of Sailing Ships).

3/ See Risinger, Another Step in the

Counterrevolution: A Summary Judgment on the Supreme Court's
New Approach to Summary Judgment, 54 Brooklyn L. Rev. 35
(1988). See also Childress, A New Era for Summary Judgments:
Recent Shifts at the Supreme Court, 116 F.R.D. 183 (1987).

4/ See, e.g., Marcus, The Revival of Fact Pleading Under the Federal Rules of Civil Procedure, 86 Colum. L. Rev.

433 (1986).

5/ Pennhurst State School & Hospital v. Halderman,

465 U.S. 89, 121 (1984).

6/ See, e.g., City of Los Angeles v. Lyons, 461 U.S.

95 (1983); see generally Winter, The Metaphor of Standing and the Problem of Self-Governance, 40 Stan. L. Rev. 1371 (1988).

7/ According to a report by the New York State Bar Association, abstention doctrines are frustrating classwide and institutional suits against state administrative systems violating federal rights. N.Y. State Bar Ass'n, Report of the Committee on Federal Courts, The Abstention Doctrine: The Consequences of Federal Court Deference to State Court Proceedings, Aug. 30, 1988.

Exhaustion and waiver doctrines are having a

debilitating affect on habeas corpus cases. See Harris, Law

and Order Idealogues Threaten Writ of Habeas Corpus, Man. Lawyer, Sept. 27, 1988, p. 10.

8/ Subcommittee on Courts, Civil Liberties and the Administration of Justice, House Committee on the Judiciary, 100th Cong., ist Sess., Report on M.R. 3152, $301 (Comm. Print Feb. 15, 1987) (abolishing diversity jurisdiction). Cf., e.g., Shapiro, Federal Diversity Jurisdiction: A Survey and a Proposal, 91 Harv. L. Rev. 317 (1977).

11/ Weinstein, After Fifty Years, supra note 2.

12/ H.R. 4807, 100th Cong., 2d Sess., Title III.

12a/ See Olson, Overdeterrence and the Problem of Comparative Risk, 37 Proceedings of the Academy of Political Science New Directions in Liability Law 43 (1988); see also P. Huber, Liability: The Legal Revolution and Its Consequences

(1988).

-

12b/ See generally Abraham, Individual Action and Collective Responsibility: The Dilemma of Mass Tort Reform, 73 va. L. Rev. 845, 859-68 (1987).

13 N.Y. Times, Oct. 17, 1988, at Al, col. 3. See

also, e.g., U.S. Dept. of Health and Human Services, Report of the National Institute of Health Ad Hoc Working Group to

Develop Radioepidemiological Tables (1985); G.T. Goodman & W.D. Rowe, Energy Risk Assessment, passim (1979).

14 See generally Swartzman and Christoffel, Allen v.

The United States of America: The "Substantial Connection Between Nuclear Fallout and Cancer, 1 Touro L. Rev. 29 (1985).

14a/ Allen v. United States, 588 F. Supp. 247 (D. Utah 1984) (awarding recovery to some but not all civilian radiation plaintiffs).

15/ In re "Agent Orange" Product Liab. Litig., 597 F. Supp. 740, 756 (1984).

16/ Sindell v. Abbott Laboratories, 26 Cal. 3d 588, 607 P.2d 924, 163 Cal. Rptr. 132, cert. denied 449 U.S. 912 (1980).

16a/ Id. at xx.

See also In re "Agent Orange"

Product Liab. Litig., 597 F.Supp. 740, 819-833 (E.D.N.Y. 1984); Hall v. E.I. Du Pont De Nemours & Co., 345 F.Supp. 353, 372-74,