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Southern Oregon University

PS 340: Law, Science and the Environment (CRN 6570)
TuTh 3:30-5:20
Taylor 26
Spring, 2013

Paul Pavlich
Office: TA 133
Hours: M 2-4, W 12-2, F 11:30-12:30
Phone: 541.552.6130
e-mail: pavlich@sou.edu

OVERVIEW. This course will examine a variety of conceptual, legal, political, economic and policy questions triggered by a reading of A Civil Action, by Jonathan Harr. A Civil Action chronicles a complex lawsuit pitting several families from Woburn, Massachusetts against two large companies: W. R. Grace and Beatrice Foods. The essential allegation of the plaintiffs' lawsuit was that the companies’ contaminated groundwater was pumped into city wells, inducing leukemia in children exposed to the water. While non-fiction, A Civil Action reads like a novel, received rave reviews, became a bestseller, and accordingly was made into a movie. We will use it as a springboard to examine the way our judicial system grapples with complexity, the frontiers of science and environmental safety.  In the end students will better understand law as dispute resolution and science as a method for exposing falsehood rather than a source of truth.

TEXTS. A Civil Action contains a wealth of information and is a compelling read. However, after an interval for perspective, the serious reader must acknowledge that it raises more questions than it answers. This is not a criticism of the author, as the under attended questions are probably intractable. The modest objective of this class is to clarify two of those questions:  what is science, and how best can it contribute to the resolution of disputes by developing frameworks for thinking seriously about them.

A Civil Action therefore while serving as the formal text for the class, will be supplemented by a variety of materials, principally from on-line sources, but also a short reprint titled The Adversary System by Stephan Landsman. The Landsman text is a brief theoretical overview of the American legal system as a procedural device to resolve disputes. In addition on-line sources and occasional class handouts will be used to supplement Civil Action.  The on line materials are central to the class reading

As a further disclaimer, students need recognize that much of the supplementary material they are asked to read will be complex or tedious. While A Civil Action makes repeated reference to the difficult scientific and legal issues litigated in the suit, it rarely disrupts the narrative by examining them. We will, and not always in a superficial fashion. Unpacking those issues is a significant step of policy analysis; and a necessary step for any useful thinking on the subject is to tackle written material that thoroughly addresses the problems.

SCHEDULE. The course chronology will track the litigation as it unfolds in A Civil Action. While the book runs nearly 500 pages, it is a quick read. Students will be asked to complete it in the first three weeks of the course. If Civil Action doesn't grab you by the throat in the first few hours, it's a signal that you probably don't want to stay in the class anyway. Thereafter, we will break down the themes raised by the book into a series of issues/topics in a more (hopefully) systematic fashion. Even without A Civil Action, there is a heavy reading load for the class. Those who want to coast this term may want to shop elsewhere. Those who want a challenging and compelling examination of law and science in the context of environmental policy making are urged to stay.

GRADES. Students will be evaluated based upon three (roughly equally weighted) take home exercises. Further, as a kind of reverse extra credit, students will be expected to participate in class discussions and become the principal participants in two or three class discussions through the term. Students who participate adequately will hold their exercise points. Students who fail to participate on their chosen days, or participate in a grossly deficient manner, will lose points earned on their exercises.

Finally (an lets not make much ado about nothing), since this class moves into scientific areas for which the instructor will lack sufficient background to fabricate a response, an extra credit scheme has been devised to supplement the exercises. Rather than impose my baseless speculation upon students, I will simply reverse roles. When questions arise in class for which it appears it would be useful to have an answer, but for which no answer if readily forthcoming, neurotic/anxious students in need of points to supplement their performance on their exercises will be given an opportunity to research and report back.

The research could come in a variety of forms, an internet search, visiting the library and perhaps working with a reference librarian, or locating someone on campus (e. g. a chemistry professor) who knows that of which they speak and can clarify our muddle. Thereafter, the student(s) organize their thoughts and report orally to the class. Typically no written product will be necessary apart from a bibliography of sources sent to the instructor in an email. The point value of these extra credit adventures will vary from question to question with no single undertaking of this nature commanding more than 5 points. I expect no more than a two or three of these occasions to arise in the course of the term.

CODA.  To summarize briefly, there are two principal lines of inquiry in the class: (1) the litigation process including attorney-client relationships, pleadings and discovery, summary judgment, Rule 11, and the trial and appeal process and their alternatives; AND, (2) science as used in policy making and litigation, including generation of theories and data, their analysis and presentation by attorneys and experts to lay decision makers . . .adapting the apparatus of the judicial system to distinguish so called junk science from real science. For this latter theme the ultimate goal is to have students come to grips with what one means by the term science with its all its potential and limitations.

Here are some cautionary notes regarding grading for this class:

(A) Students should keep a copy of all written exercises. The burden of loss of any missing written work will rest entirely on the student.

(B) Class grades will be assigned based upon a rough curve comparing point totals accumulated by students over the entire term.  No individual exam will be assigned a letter grade.  Rather students earn points depending upon the comprehensiveness and cogency of their response.   After each graded exercise, students will be shown two curves enabling them (1) to compare their point totals with others for the discrete exam and (2) compare their cumulative point totals for all exams given by that point in the term.

(C) Other than as discussed in connection with class participation discussed above, class attendance is not considered when evaluating students.  You will be treated as mature individuals, capable of choosing responsibly whether to attend class on a given day.  Students should recognize that class meetings also serve as a medium for communicating to them about the class. Information concerning the class, not contained in the syllabus, is generally communicated at one class meeting and noted on the class website, but not repeated elsewhere.  This may include additional reading assignments, handouts, exercise information, modifications in the syllabus etc.  Students bear the entire responsibility to ensure that they understand the requirements for the class by either attending regularly or making other arrangements to ascertain how the course is moving.

(D) The principles espoused in the SOU policy on academic dishonesty are applicable to this class.

(E) If you are in need of academic support because of a documented disability (whether it is psychiatric, learning, mobility, health-related, or sensory), you may be eligible for academic accommodations through disability services for students. Contact Disability Services for Students; Director, DSS; 552-6213; or schedule an appointment in person at the ACCESS Center, Stevenson Union, Lower Level.

SCHEDULE OF EVENTS
(For those confused by legalese, an online legal dictionary is available at http://dictionary.lp.findlaw.com/)

April 2-18. A Civil Action overview.

During the first three weeks of the class, students are expected to read all of A Civil Action and the first chapter of The Adversary System.

Civil Action can then become background for the rest of the class. As mentioned earlier, if you don't find that that Harr's account grabs you the rest of the class will be a real drag and you should drop before you sink much energy into it. We will spend the first three weeks trying to make sense of what actually happened and why the dispute was resolved as it played out. To help with this, you should also read the first chapter of the Adversary System.  It is only a few pages long and helps make sense of the Harr text.

Assignment #1: Timeline/Map/ Media critique
At the end of the third week (April 18), students must produce a Timeline, a map and “literary/movie” review.

The timeline will chronicle the facts of the case with little to no emphasis on the legal (trial or pre trial procedures) component of the narrative. In other words, you should focus upon what happened outside the courthouse that led to the trial. That is not to say that many events from the litigation process may not show up in your timeline. Rather it is an opportunity for you to try to create a program or guide for your reference throughout the remainder of the class. Your timeline needs to develop the context for the leukemia cluster, that is identify events in Woburn that put the entire dispute/controversy in perspective, going back to the seventeenth century if necessary.

The primary objective of your timeline and the guiding principle for your work as you write is to create a document that organizes events leading to a lawsuit

Again, the primary objective of your timeline and the guiding principle for your work as you write is to create a document that organizes events leading to a lawsuit.  What happened to the people, the land, and the community that led to litigation?  When did it happen?  You need to craft a neutral document that will enable you to dispassionately assess the facts in a thorough and analytic fashion.

As appendices to the timeline  (20 points) you have two additional assignments.  The first is to produce a map of the relevant part of Woburn (5 points). The map should at minimum identify the location of the wells, the defendant's operations and the most significant topographical features (e.g Aberjona River).  The photocopy of the map in the book is adequate as long as you gild it with at least one additional piece of information to it

The second appendix to add to the timeline is a brief (one page MAXIMUM) contrast of the portrayal of the litigation process in the movie with that of the text.  (5 points) That is, contrast how the two media depict the adversary system.  The question you are investigating for this task is whether either one adequately develops the logic of the adversary system?

The timeline, map and adversary system comparison (“Review”) is due April 18 at the beginning of class.  It is worth a total of 30 points.

Additional Optional Reading:

Hazardous pollutants list
Brownfields
leukemia information library

April 18-May 7 Science in the Courtroom

This section examines the capacity of the legal system to gather and analyze scientific information necessary to resolving disputes like the one arising in Woburn. The focus will be on the discovery of information necessary to analyze and the admissibility of novel or cutting edge scientific explanations and the people who act as witnesses at trial to explain them. All of which forces us to clarify what we mean by science.

READING:
Federal Rules of Evidence ##701, 702, 703, 706  (April 18-23)
Daubert v. Merrell Dow (April 23- 25)
Neutral Amicus Brief: Carnegie Commission (April 30- May 2)
Advocate Amicus Briefs for Daubert:
1. American Academy for the Advancement of Science (May 2-7)
2. Physicians, Scientists, Historians . . .  (May 2-7)

Exercise #2 Distributed May 1, due May 9 (30 points)

May 9- June 11 Lawyers, money and litigation. This section of the course examines whether (or how) the civil litigation process, and in particular attorneys in private practice, are able to adequately resolve the kinds of disputes featured in the Woburn case. The protagonist in the story, plaintiff's lawyer Jan Schlichtmann is sometimes presented almost a caricature of a lawyer. Is he what we expect of lawyers? Why? What is the role of the lawyer in our society? What should it be? We will examine a variety of issues including enabling injured parties to identify competent attorneys to handle these kinds of cases, costs of financing such a case, conflicts of interests (e. g. multiple plaintiff cases) appropriate compensation for attorneys, settlement incentives and disincentives to frivolous litigation and the attorney compensation scheme.

Then we examine the trial process in toxic tort litigation. This begins with a primer on pretrial and trial procedure. After that we explore the jury’s role and in particular their capacity to resolve disputes like these. This includes the jury selection process, jury control and management by trial court judges and the possibility of incorporating more scientific expertise in the decision making process.   How and why are punitive damages central to complex litigation?  Finally we compare civil litigation with alternative dispute resolution mechanisms.

READING:
Adversary System: Ch 1, 4, 5
Francke v Gable 
Massachusetts Rules of Professional Conduct ("Attorney Ethics") Rules 9.1 (definitions); then 1.1-1.7, 3.1, 3.3, 3.6,  7.1-7.3
“Rule 11”

Daily Reading For this section

May 9-14 Adversary System Ch 1, 4, 5 & Francke
May 16 MRPC 1.1-1.7
May 21-23 MRPC 3.1-3.4, Rule 11, MRPC 7.1-7.5

May 23-28 "Due process clause" (Fifth Amendment)
FRCP 26 (Discovery Rules) (See specifically part B Scope, Limits and Trial materials)

May 28  Juries:
JUROR QUESTIONNAIRE
FRCP 47, 48, 49 (Juries & Verdicts: Special and otherwise) 
Seventh Amendment

May 30  Punitive Damages, State Farm v Campbell:  Kennedy & Ginsburg

May 30- June 6: "ADR"
A B Cs of Alternative Dispute Resolution (May 30)
Science Courts  (June 4)
Second Thoughts on Mediation  (June 4)
Pretrial Mediation . . .  by Susan Cowell (June 4-6)

EXERCISE #3  Distributed Thursday May 30; due at 3:30 pm, Tuesday, June 11 in the Taylor 26.  (40 points)

Postscript:  Vanishing Jury Trial