Jacob Karabell '09 assists Samuel Issacharoff in preparing a Supreme Court brief and oral argument in asbestos litigation case
While many students were in class on March 30, Jacob Karabell ’09 was watching his professor, Samuel Issacharoff, Bonnie and Richard Reiss Professor of Constitutional Law, deliver an oral argument at the U.S. Supreme Court for which Karabell helped him prepare.
“I had never seen a Supreme Court argument in person before,” Karabell said. “It was particularly exciting to be there given that I knew the case so well. I had run through the argument a million times in my head. As a result, it was fascinating to watch everything unfold several rows in front of me.”
The case, Travelers Indemnity v. Bailey and the consolidated case Common Law Settlement Counsel v. Bailey, involves the long-running asbestos litigation, starting with the 1986 settlement with the bankrupt Johns-Mansville Corporation to handle claims by those injured by exposure to asbestos. The settlement compensated 660,000 claimants with more than $2.8 billion. Insurers contributed to the fund and received immunity from the bankruptcy court from future claims related to their policies with asbestos makers.
Plaintiffs’ lawyers later found other grounds to sue insurers including Travelers. Travelers objected, asserting that the new claims were barred by the bankruptcy court’s immunity order. After mediation, Travelers agreed to fund a $500 million trust for the new plaintiffs, in return for clarification that it would be immune from further claims. But other plaintiffs not part of the new settlement objected, and the U.S. Court of Appeals for the Second Circuit agreed, finding that the bankruptcy court did not have the power to immunize Travelers from the other claims. The Supreme Court granted review.
Karabell began working on the case in January with Issacharoff, who represents the plaintiffs against Travelers. He wrote an expansive memorandum analyzing one of the crucial issues in the case and reviewed Supreme Court and circuit case law, legislative history, and scholarship. Students from NYU Law’s Supreme Court Litigation Clinic also assisted with the brief and the clinic and its director, Samuel Estreicher, Dwight D. Opperman Professor of Law, appeared as co-counsel on the brief.
“Once we received the petitioners’ brief, our work began in earnest since we had 30 days to submit our brief,” Karabell said. “Among other things, I was primarily responsible for the appendix of our brief, which set forth a list of the Supreme Court’s bankruptcy cases since the Court amended the Bankruptcy Act in 1984. The appendix demonstrated that the Court has never decided a bankruptcy case that has not involved the administration of the debtor's estate, which was the situation in our case.”
Karabell said that once the brief was submitted, he helped Issacharoff prepare for oral argument by performing additional research on specific questions that might come up. “In fact, one such question did come up in the argument, and Professor Issacharoff relied on my research in answering it. Justice Souter asked whether subject-matter jurisdiction ever can be challenged collaterally (i.e. in a second proceeding) if it is not contested in the first proceeding. Professor Issacharoff asked me to research this question a couple of nights before this argument, thinking that one of the justices might ask it, and I discovered that the Court never had squarely addressed the issue.”
Issacharoff and Karabell now await the Court’s decision, which should be issued in the next several months.
Karabell said the experience endeared him to appellate litigation specifically and litigation more generally. “I really enjoyed the strategic aspects of the case and seeing how our perspective changed as we delved deeper into the legal issues. I learned a tremendous deal from Professor Issacharoff that I hopefully will have the opportunity to utilize in the future.”
Karabell graduates in May and will work as an associate at Covington and Burling in Washington, D.C. for one year before clerking for Visiting Professor of Law Judge Harry T. Edwards of the U.S. Court of Appeals for the D.C. Circuit.
As for whether he sees another Supreme Court argument in his future with him behind the lectern, Karabell said “that would be an amazing and incredibly daunting opportunity. If nothing else, I realize how difficult it is fully to feel prepared for an oral argument, particularly at the Supreme Court level.”