Issue 73 - Stanford Lawyer - Stanford University

CHANGING THE WORLD
25
STANFORD
LAWYER
In her work on asbestos litigation,
Deborah R. Hensler,
Judge John W. Ford Professor of
Dispute Resolution, says she often
hears the question, “Asbestos
Isn’t that in the past”
Quite the contrary: because asbestos-related diseases
have a latency period of up to 40 years, the injuries—and
the lawsuits—have multiplied in recent years.
And because asbestos lined the pipes and ceilings of
so many buildings throughout the United States, and
was used in myriad products, Hensler said, “There’s an
almost unlimited number of business entities that had
some responsibility for workers’ exposure.”
So Hensler’s work on a RAND Corporation study
released May 10 of this year, “Asbestos Litigation,” is
only too timely. Hensler joined the law school faculty
in 1998 from RAND, where she was director of the
Institute for Civil Justice, the pre-eminent center for
non-advocacy research on civil justice policy.
The most disturbing findings of the report,
Hensler says, are that people with minor or no injuries
are now filing the majority of the lawsuits, and more
than half the money spent is going to lawyers and
legal expenses.
“There are lots of people who have X-rays that
show damage but have no symptoms,” Hensler said.
“My hope is that through congressional or other
PHOTO: LINLY HARRIS
DEBORAH HENSLER: REFORMING ASBESTOS LITIGATION
action, the system will be reformed so that more of the
money will go to the people who’ve been most seriously
injured.”
In the RAND report, Hensler and her co-authors
discuss recent proposals for reforming the asbestos
compensation system, including using medical criteria
to screen tort claims, and removing asbestos litigation
from the tort system entirely, substituting a trust fund
for asbestos victims.
This spring, the U.S. Senate voted legislation that
would establish a trust fund—SB 852—out of committee.
But whether it will make it into law is still unclear;
asbestos litigation reform has been proposed many
times before, only to fail.
“Deborah is the neutral party who tries to provide
objective information to the policymakers so they can
sort out their issues,” said Stephen Carroll, a senior
economist at RAND. “She is very concerned about
fairness and equity, and a part of her concern is to alert
policymakers that the court system does not handle
mass litigation well.”
Hensler, who has been studying asbestos litigation
since the 1980s, said that the subject never fails
to interest her. “Asbestos litigation provides a prism
through which to view the strengths and weaknesses
of the tort system,” she said. “Whenever I think there
is nothing further to learn from the asbestos saga, I
am proved wrong.”—Mandy Erickson
PAMELA KARLAN: EXTENDING VOTING RIGHTS
The Mississippi and Arkansas
Deltas share similar history
and demographics. But there is a
subtle difference. In Mississippi,
on the eastern bank of the
Mississippi River, the local government
must receive federal approval before it makes
any changes to registration requirement, voting procedures,
or electoral districts. In Arkansas, on the western
bank, “preclearance” doesn’t apply. As a result, said
Pamela S. Karlan, “If you look at Mississippi, the black
community there has been much more successful at
electing representatives of its choice than comparable
communities in the Arkansas Delta.”
PHOTO: LINDA A. CICERO
The preliminary research, which Karlan compiled
with student help, is just one piece of evidence the
Kenneth and Harle Montgomery Professor of Public
Interest Law hopes to use this fall as part of a concerted
effort to reauthorize the Voting Rights Act. Passed
in 1965 at the height of the civil rights movement,
the groundbreaking federal legislation permanently
outlawed such practices as poll taxes and literacy tests
that were designed to prevent African-Americans from
voting.
But the act also included some temporary provisions
that will expire in 2007 unless Congress acts.
Among them is Section 5, which requires that certain
states and counties receive preclearance from the feder-