Benign neglect reconsidered.

• Author: Marcus, Richard L.
• Position: Mass Torts Symposium - Response to article by Edward H. Cooper in this issue, p. 1943

My theme for discussing Professor Cooper's paper(1) is prompted by the impending retirement of Senator Daniel Patrick Moynihan. Many may recall how he first came to broad public attention. In .January 1969, as an advisor to President-elect Richard Nixon, Moynihan wrote a memorandum concerning the course the new President should adopt toward race relations in the wake of the civil rights activism of the 1960s. Borrowing the Earl of Durham's 1839 suggestion for the British attitude toward Canada,(2) Moynihan recommended that the new administration pursue a policy of "benign neglect."

After the New York Times obtained a copy of the memorandum and published it,(3) Time reported that "the document caused a sensation."(4) Noting that Moynihan was a long-standing Democrat who had served in the Johnson Administration and was "generally regarded as the most liberal of close Presidential advisers," the Wall Street Journal opined on "Mr. Moynihan's Apostasy."(5) It concluded that the memorandum was leaked to enrage civil rights leaders "because of the incendiary phrase."(6) Anthony Lewis opined that African Americans would rightly interpret neglect as hostile,(7) and the Times editorially concluded that the phrase "may have been felicitous when applied to Canada by the Earl of Durham in 1839 but it suggests no program for black America in 1970."(8) Congress also discussed the implications of the memorandum.(9)

So anyone who borrows the Earl of Durham's phrase another time must do so diffidently. Yet the procedures that undergird the debate about mass tort litigation also owe much to a different form of 1960s activism--active employment of the federal courts to foster multiparty litigation. The 1966 amendments to Rule 23 were partly designed to facilitate civil rights litigation,(10) and the framers were certainly aware of the possible use of the new provisions of Rule 23(b)(3) in mass accident litigation.(11) The 1968 adoption of the Multidistrict Litigation Act.(12) embraced another theme of the era--achieving efficiency by combining federal lawsuits from across the land. The combination of these two creations of the Sixties has proved critical to much of current mass tort litigation.

Since the Sixties there have been proposals to change Rule 23, but these have not been adopted except for one relatively small provision.(13) Regarding legislation and rulemaking, therefore, it seems that benign neglect has been the order of the day,(14) even in the face of increasing enthusiasm in some quarters for action to respond to the challenges of mass torts. In 1991, for instance, the Judicial Conference's Ad Hoc Committee on Asbestos Litigation concluded that there was a "litigation impasse [that] cannot be broken except by aggregate or class proceedings,"(15) and urged Congress to act to resolve the problem.(16) That did not happen, and the courts were left to improvise using existing procedural tools. In 1999, Chief Justice Rehnquist joined the Court's decision in Ortiz v. Fibreboard Corp.(17) decrying the "elephantine mass of asbestos cases,"(18) a but added a separate opinion concluding that the Court's rejection of a class action settlement designed to solve those problems was correct because "we are not free to devise an ideal system for adjudicating these claims."(19) Accordingly, "[u]nless and until the Federal Rules of Civil Procedure are revised, the Court's opinion correctly states the existing law."(20) Perhaps this was an invitation from on high to change the rules.

Much study has been done on how an "ideal system" might be designed, and how Rule 23 might be amended to further that goal. Throughout the 1990s, the Advisory Committee on Civil Rules has been considering possible changes to Rule 23.(21) Shortly after Chief Justice Rehnquist's call for action in Ortiz, there were hearings in Congress about a possible solution to the asbestos litigation problem.(22)

Professor Cooper's paper moves beyond asbestos litigation to propose a statutory "all-encompassing" solution to the problems of mass tort litigation. In addition, it proposes a rule revision that would not require statutory facilitation. For those in a position to act on these suggestions, the question is whether the time for benign neglect has passed. To shed light on that question, this Commentary will play devil's advocate and present the arguments for adhering to a policy of benign neglect.

1. BENIGN NEGLECT IN THE PAST

   Before addressing the current proposals, it is important to recall our experience with benign neglect during the last quarter century. This is not the first time there have been urgent calls for class action reform. To the contrary, twenty-five years ago there was what Arthur Miller called a "holy war" over Rule 23.(23) The criticism took discordant themes. One decried the "enabling" features of the 1966 amendments. It was typified by Milton Handler's denunciation of antitrust class actions as "legalized blackmail,"(24) and the condemnation of the Eisen class action as a "Frankenstein Monster posing as a class action."(25) Others found that there was too much restraint on the availability of class actions. Writing in the Columbia Law Review, a representative of the Department of Justice urged that class action reform was necessary to end "[s]ubstance's [i]ndenture to [p]rocedure."(26) He decried the ability of defendants to frustrate class certification by challenging the existence or predominance of common questions, or by attacking the adequacy of representation afforded by the person who brought the suit.(27)

   Faced with this turmoil, the Advisory Committee concluded that any modification of class action practice should come from Congress, a position approved by the Judicial Conference.(28) The Department of Justice proposed legislation to rectify the problems that it believed affected class action practice,(29) but that bill was not adopted. In effect, benign neglect became the order of the day.

   Yet the roof did not fall in. In part, this was due to restrictive Supreme Court class action decisions on subject matter jurisdiction,(30) notice to class members in Rule 23(b)(3) class actions,(31) and appellate jurisdiction.(32) But more generally, as predicted by Professor Miller in 1979, it seems that the courts mastered the difficulties presented by Rule 23. Miller noted that there had first been a period of "euphoria over the rule's potential" among the legal community' in the second half of the 1960s during which not enough attention was paid to the rule's requirements.(33) This initial period of excitement was followed by a period of reaction from about 1969 to 1974 when "antipathy to the class action became palpable" among courts.(34) Miller believed that the pendulum then began to swing again, and that we then entered a phase during which "[i]nstead of wielding a meat axe, courts increasingly ... operat[ed] with a scalpel."(35) In his view, benign neglect would work. When the RAND Corporation announced its class action study in 1999, it seemed to confirm that Miller's prediction had proved correct: "[A] s the years passed, the legal system gradually acclimated itself to the 1966 rule. Courts pulled back from their initial enthusiastic support, litigation patterns became more predictable and therefore easier for corporations to adjust to, and the clamor for rule revision died down."(36) Indeed, things became so tranquil that in 1988 the New York Times reported that class actions were "dying."(37)

   Shortly after Professor Miller wrote, however, seeds of new turmoil about class actions were sown. The opening shot was fired in 1981 by Judge Spencer Williams in San Francisco, who was presiding over personal injury suits brought by users of the Dalkon Shield contraceptive device. Appreciating the prospect of burgeoning mass tort ligation,(38) Judge Williams saw Rule 23 as the key to a cure. He therefore certified a nationwide mandatory class action for punitive damages and a statewide Rule 23(b)(3) opt-out class action for compensatory damages for California users of the Dalkon Shield. He saw class treatment as essential to avoid the "unconscionable possibility that large numbers of plaintiffs who are not first in line at the courthouse door will be deprived of a practical means of redress."(39) When the Ninth Circuit held that Rule 23 did not permit what he had done, Judge Williams wrote an article lamenting the possible demise of mass tort class actions and forecasting that "until Congress addresses these questions by enacting comprehensive federal products liability law ... the inequities and shortcomings of the present system require that we judges work in an innovative fashion, adapting aspects of the current system to address these challenging problems."(40)

   Judge Williams was right about judicial innovation; as Professor Cooper says, the courts have been "remarkably inventive" in addressing the problems of mass tort litigation with existing procedural tools.(41) As I have written elsewhere, federal judges engaged in this effort often seemed animated by a substantive preference to subordinate punitive damages to compensatory relief and to ensure that priority in obtaining relief would be given to those suffering the most serious injuries.(42) These efforts have relied not only on Rule 23, but also the power of the Panel on Multidistrict Litigation to combine federal cases under [sections] 1407, most prominently evidenced in the 1991 order transferring all asbestos personal injury actions to Philadelphia.(43)

   There seem again to have been some elements of overenthusiasm in this process of creativity. It is chilling, for example, to learn of the insouciance exhibited by the district judge who certified a mandatory class action in Bendectin litigation in 1984.(44) This early experience seems to parallel the "euphoria" Professor Miller detected in the wake of the 1966 amendments to Rule 23.(45) There has surely been a...