FOREWORD: CAUSES AND LIMITS OF PESSIMISM.

• Author: BURBANK, STEPHEN B.

The David Berger Program on Complex Litigation has enabled the University of Pennsylvania Law School to serve as a partner with the Advisory Committee on Civil Rules of the Judicial Conference of the United States in bringing together talented judges, scholars, and practicing lawyers to discuss the pressing procedural issues of the day. This partnership resulted in a number of meetings devoted to the state of practice under, and the possibilities for amending, Rule 23 of the Federal Rules of Civil Procedure, governing class actions. More recently, the success of the format led the leaders of the federal judiciary's effort to reconsider the treatment of mass torts, Judges Anthony Scirica and Paul Niemeyer, to request that I organize a group to help map the terrain for the Working Group on Mass Torts and, after the Working Group issued its report,(1) in assessing the prospects for reform surveyed there.

This Symposium on Mass Torts represents part of that effort, and I am grateful to the University of Pennsylvania Law Review for choosing it as their annual faculty symposium and to the editors for their help in making the arrangements and in shepherding the papers through the editorial process. All of those involved owe a special debt of gratitude to Ms. Rae DiBlasi, whose competent and cheerful help in this, as in so much over a Penn Law career spanning more than forty years, ensured that complicated arrangements seemed simple and allowed the participants to do their work efficiently and comfortably. A final word of gratitude is reserved for David Berger, member of the Class of 1936. Throughout an astonishing career at the bar, David has always remembered his alma mater and has always allowed the scholars his funds have supported to go where their research took them.

As the readers of the contributions to this symposium will quickly discover, not only is there no panacea for the problems created by contemporary mass tort litigation, but there is widespread pessimism among informed participants and observers about the ability of our legal system to devise adequate solutions. I believe it is worthwhile to consider briefly the sources of such pessimism, the causes of the distress that is evident in so many of the papers that follow. My hope is that this exercise may help to identify the limits of pessimism and hence to be realistic about reform.

Consideration of the characteristically masterful paper by Professor Edward Cooper, which canvasses both a bold and a modest approach to the closure of mass tort claims by litigation or settlement, should immediately remove from suspicion as the cause of pessimism the lack of imagination, ingenuity, or insight.(2) Rather, it appears from Professor Richard Marcus's friendly but probing commentary that the problems of mass tort litigation are polycentric, so that pressure applied in one area causes movement elsewhere,(3) and that even a modest reform may yield a cure worse than the disease.(4)

The other commentary on Professor Cooper's paper, authored by Chief Judge Edward Becker and Jerome Marcus, reminds us that expertise comes in many forms and that solutions to the problems of mass torts will require more than the best efforts of the bench.(5) It is no criticism of a group appointed by the Chief Justice of the United States and working under the auspices of a committee of the Judicial Conference that their work has focused on legal change within the power of judges to effect. Indeed, one of the many useful products of that work has been frank recognition of the limits of judicially fashioned change and the importance, therefore, of participation, if not leadership, from the other branches of...