Document Type

Article

Publication Date

1995

Center/Program

Center for Contract and Economic Organization

Abstract

Legal change-like organic evolution-can occur at varying paces.1 Long periods of gradual evolution are sometimes punctuated by brief moments of rapid, irregular change. Recent developments in class action practice bear witness to this phenomenon: during the 1990s, evolution has given way to mutation. At least with respect to mass torts, the development of the class action had been slow and halting. Well into the 1980s, federal courts uniformly resisted attempts to certify such mass tort class actions, largely out of concern that the interests of the individual litigant would be submerged within any large-scale proceeding.2 By the end of the 1980s, however, the tide began to turn in favor of class certification, as the advocates of aggregative techniques increasingly gained the upper hand over the defenders of individual litigant autonomy. Already, some have described this transition as a paradigm shift, signaling a fundamental movement away from the traditional bipolar organization of litigation to a new, more collectivized structure.3

While acknowledging this transition, others have expressed normative reservations about it.4 Their concerns have focused largely on "process values": in particular, whether the shift from an intellectual rationale based on "individual rights" to one focused on "group interests" abandons the "deep-rooted historic tradition that everyone should have his own day in court."5 So framed, the debate may seem to pose the usual clash between efficiency and fairness, between those concerned with the high public and private costs of duplicative litigation and those committed to an individual's right to control litigation involving important personal interests.6

The problem with this supposed tradeoff is that it distorts the "real world" of mass tort litigation by making unwarranted assumptions. In fact, the dilemma in mass tort reform arises precisely because neither efficiency nor fairness, taken alone, is easily realizable. On the one hand, the efficiency claims made for the mass tort class action are problematic because, as this Article will argue, claim aggregation through class actions systematically tends to disfavor certain identifiable, but underrepresented, classes of tort victims. On the other hand, litigant autonomy in the mass tort context may be an illusory goal. Without discounting the urgency or uniqueness of the ethical issues that arise in mass tort class actions,7 this Article recognizes that individual plaintiffs have weak to nonexistent control over their attorneys across the mass tort context for reasons that are inherent to the economics of mass tort litigation. Accordingly, proposals for the return to a traditional system of individual case litigation are apt to be as quixotic as they are costly.

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