Harvard Law Students Participate in Asbestos Case

Harvard Law School students Justin Raphael and Andrew Furlow have been given a rare opportunity to help prepare an oral argument that was presented by constitutional scholar Samuel Issacharoff to the U.S. Supreme Court. Issacharoff is a professor at New York University School of Law, and met Raphael and Furlow while working at Harvard as a visiting professor. Issacharoff asked the men to assist him in a case where he was representing the plaintiffs in a complicated asbestos case.

The case was Travelers Indemnity v. Bailey and the consolidated case Common Law Settlement Counsel v. Bailey. Both cases stem from a 1986 settlement between the bankrupt Johns-Manville Corp. and over 600,000 separate asbestos claimants. Asbestos exposure may cause lung cancer and mesothelioma. The settlement was $2.8 billion. In addition to the financial settlement, insurers were given immunity from any related claims in the future.

However, lawyers for the asbestos claimants found additional grounds to sue the insurers. Making the case even more complicated is the fact that the U.S. Court of Appeals (2nd Circuit) found that the bankruptcy court did not have the authority to grant immunity in future cases against Travelers Insurance. This caused the case to go before the Supreme Court.

Harvard Professor Elizabeth Warren represented Travelers before the Supreme Court. “The Supreme Court was called on to rule whether the bankruptcy court had overstepped its jurisdiction with respect to the company’s insurance proceeds,” she says. “I believe that when the founders included bankruptcy in the Constitution that they envisioned a bankruptcy system that is flexible and that has the kind of broad reach that was used in this case.”