The Short Life and Long Afterlife of the Mass Tort Class Action

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Modern class action litigation began in 1966, when the Federal Civil Rules Advisory Committee completed a revolutionary set of revisions to Rule 23 of the Federal Rules of Civil Procedure. Fifteen years of tumult followed, as the legal community struggled to test the new device’s potential and identify its limits. The class action’s waters then calmed, and by the end of the Reagan Administration, some viewed the Rule 23 experiment as nearing its end. But the turbulence started again before the 1980s finished, and heated combat over class action law and policy has continued since then. The late 1980s and early 1990s were therefore a crucial period. During these years the class action moved onto the evolutionary course it continues to follow.

Several episodes triggered policymakers’ reengagement with class action law during these years. But perhaps most consequential was the short but supercharged life of the mass tort class action. I tell this story here, as an installment in my series on the history of the modern class action. My focus is the constellation of events that led to Amchem, the stunning class settlement proposed in 1993 to resolve millions of asbestos‐related claims. Although the story of the mass tort class action has several important chapters, the Amchem one is surely the first among equals, for the potential it had to remake the law of complex litigation, and for its pervasive and lasting influence on class action doctrine. Had Rule 23 proven able to encompass mass tort litigation, it would have shown its mettle in Amchem. The settlement’s failure largely ended the mass tort class action experiment, at least for two decades.

The mass tort class action’s story has abundant intrinsic interest, but it is worth telling for other reasons as well. First, its short life began and ended at a key moment in litigation history. The modern class action debuted during an era when the institutional footprint of private civil litigation expanded considerably. This development sparked a reaction, as critics faulted with increasing vehemence a perceived surfeit of judicial power exercised through the supervision of litigation. By the early 1990s, class action law and policy had become an important front in a larger war, fought over the right response to a basic query—how much weight can private civil litigation legitimately bear? The failure of the mass tort class action, coinciding with other developments, provided a more restrictive answer. Second, the episode has had a long afterlife, one that has continued to influence the law of complex litigation. The mass tort class action contributed significantly to an important shift in the governing structure for the supervision of class action doctrine. This shift has ensured that a restrictive legal regime regulates Rule 23’s administration.

Part I describes the origins of the mass tort class action in the path‐breaking decisions of two judicial mavericks in the early 1980s. Amchem’s story comes in Part II. Part III documents the lasting influence the mass tort episode has had on the governance of class action doctrine.

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