VOLUME 165, ISSUE 7 October 2017


“To a hammer, everything looks like a nail. And to a Court bent on diminishing the usefulness of Rule 23, everything looks like a class action, ready to be dismantled.”

Am. Express Co. v. Italian Colors Rest., 133 S. Ct. 2304, 2320 (2013) (Kagan, J., dissenting).

In 1978, top DOJ officials in the Carter Administration floated a revolutionary proposal that would have remade the consumer class action and, with it, the relationship of litigation and administration in the American regulatory state. At the proposal’s core was a “public action” for widespread small‐damages claims that sought to replace Rule 23 with a hybrid public‐private enforcement model. Similar to the False Claims Act, this new mechanism would have granted private plaintiffs the power to bring lawsuits on behalf of the United States and recover a finder’s fee if successful, but it also gave the DOJ substantial screening authority and control over such actions, including the ability to take over suits or dismiss them outright. Despite months of shuttle diplomacy among interest groups, a pair of bills in Congress, and full‐scale committee hearings, this creative blend of private initiative and public oversight soon fizzled. Yet the story of the proposal’s rise and fall nonetheless provides a venue for wider reflection about American civil procedure and the political economy that produces it. Indeed, the failed revolution of 1978 reveals a contingent moment when the American litigation system was splintering into the pluralistic, chaotic one we now take for granted, including hard‐charging state attorneys general, a federal administrative state with litigation authority independent of the DOJ, and a sophisticated and politically potent plaintiffs’ bar. In retrospect, the proposal may have been the last best chance to counter the centrifugal tendencies of an American state that was progressively empowering ever more institutional actors within the litigation system. Just as important, lurking in the background of the story of 1978 is the bracing possibility that the Rules Enabling Act, for all its virtues in revising technocratic procedural rules, has systematically enervated efforts to address larger procedural design questions in an increasingly dense and interconnected regulatory world.

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.

Multidistrict litigation (MDL) is unorthodox, modern civil procedure. It is an old‐but‐new procedural tool that significantly disrupts decades of worked‐out doctrinal equilibria—and, now comprising a shocking 39% of the cases on the civil docket, MDLs warrant more attention than they have received. The MDL puts a thumb on the scale of nationalism over federalism, consent over adversity, procedural exceptionalism over transsubstantivity, and common law over the Federal Rules. In other words, the MDL takes what has generally been the losing side of procedure’s big theoretical and doctrinal debates; it is a symptom of deeper pressures on the system to recalibrate procedure’s traditional baselines.

MDLs are modern because they see the need for a national, not state‐centered, approach to questions of procedure. They disrupt traditional legal relationships, turning judges and lawyers into collaborative partners in practical problem solving and creating a new judicial elite among the federal judges chosen to lead them. MDLs exemplify procedural exceptionalism—a type of litigation that judges insist is too different from case to case to be managed by the transsubstantive values that form the very soul of the Federal Rules. Instead, judges develop their own special MDL procedures—yet this new kind of procedural law is rarely treated as precedential or even subject to customary appellate review.

These deviations from the “textbook” have caused academic anxiety. Scholars worry about lack of transparency, loss of the individual claim, and the dearth of uniform procedural law. Many judges who try MDLs, on the other hand, view them favorably—often as the only way to ensure access to court for massive claims on a national scale—and also as highly enjoyable judicial work. This Article relies on interviews with MDL judges to offer a new set of counterpoints to the academic criticism.

The Article also sets MDLs in the broader context of “unorthodox lawmaking”—a phenomenon documented in the legislative context but not yet in procedure. MDLs, like omnibus legislation and other forms of nontraditional lawmaking, are responses to pressure on the system, some way in which legal rules have not kept up with the obstacles of modern times when the consensus is that Congress and the courts must nevertheless take action. All of these unorthodox vehicles thus tend to operate outside the relevant rules, raising questions about the value of the rules themselves. They raise the question: What do we care about most? Is it access to court (or, analagously, the production of legislation)? Or is procedure for procedure’s own sake the more important value—even if upholding that value means fewer cases get resolved? MDLs highlight this tension. They are likely more symptom than cause of procedure’s modern challenges.

This Article maps the transformation of constitutional understandings of the forms of aggregation that due process permits by putting these expanding views into the context of the changes in the federal docket during the past half century. In the 1940s, jurists interpreting the representative action provisions of the Fair Labor Standards Act thought individuals who had not personally agreed to be part of those cases could not be bound by the results. In the 1950s, however, the Supreme Court approved aggregation to serve the “vital state interest” in protecting banks from large numbers of claims when trust accounts were pooled. And in 1966, Rule 23 created a broader mechanism to bind absentees without their affirmative consent or their participation at the inception of a lawsuit. Through analyzing unpublished memos by Rule 23 drafters, I show how remarkably successful they were in displacing once conventional constitutional wisdom by disentangling autonomy, consent, and individualization in litigation from the strictures of the Due Process Clause.

One marker of change comes from data on the related aggregate form of multi‐district litigation, which in 2015 accounted for almost forty percent of the federal courts’ docket of pending civil cases. Other data mark the need for aggregation: twenty‐five percent of the civil filings in federal court, and fifty percent of the appeals, are by litigants without lawyers. Aggregation provides infusions of resources that are central to enabling litigation, and hence aggregation continues to serve the “vital interest” of the government—in need of legitimate court systems to which diverse users have access.

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