Of Form and Function: Lockean Political Philosophy and Mass Tort Jeffrey C. Sindelar, Jr

• Publication year: 2021
• Citation: Vol. 90

90 Nebraska L. Rev. 887. Of Form and Function: Lockean Political Philosophy and Mass Tort Jeffrey C. Sindelar, Jr

Of Form and Function: Lockean Political Philosophy and Mass Tort Jeffrey C. Sindelar, Jr.(fn*)

TABLE OF CONTENTS

I. Introduction .......................................... 888

II. The Mass Tort Problem ............................... 889
A. The Mandatory Class Action Approach to Mass Tort ............................................... 890
B. The Individual Autonomy Concern ................. 894
1. The "My Day in Court" Mentality .............. 894
2. Law for Law's Sake ............................ 896

III. Form and Function: In Defense of a Certain Type of Formalism ............................................ 899
A. Rule-of-Law Formalism ............................ 899
B. Form in the Service of Function ................... 902

IV. John Locke on Form and Function .................... 904
A. Locke in America .................................. 904
B. State-of-Nature Theory ............................ 905
1. Why a State of Nature? ........................ 905
2. Lockean Hierarchy of Law ..................... 905
3. What Is the State of Nature? What Is Natural Law? .......................................... 907
4. Why Choose a Commonwealth? ................ 909
5. Locke's Notion of Property ..................... 910
6. The Social Contract: Bound by the Will of the Majority ....................................... 913
C. Lockean Rationality: Form in the Service of Function .......................................... 913
D. Lockean Implications for Tort Law ................. 916

V. Conclusion ............................................ 919

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I. INTRODUCTION

The efficacy of tort law in the United States has been widely criticized by academics and judges.(fn1) In the mass tort context, a great deal of criticism has focused on the inefficiencies created by individual claim autonomy-the notion that every person is entitled to his or her own day in court. Attempts to individually adjudicate mass tort cases, such as asbestos and other mass-exposure cases, have clogged court dockets and substantially burdened the civil justice system.(fn2) Some scholars argue that the process of individually litigating mass tort claims and allowance of opt-out rights in class actions lead to subop-timal investment by plaintiffs.(fn3) Further, the concentrated interests of mass tort defendants-who may expect numerous similar suits-endow them with an "asymmetric scale advantage" to invest in litiga-tion.(fn4) On the other hand, defendants are forced to re-litigate issues across multiple jurisdictions, risking inconsistent judgments, facing prolonged uncertainty, and incurring ever-growing legal expenses. Similar and overlapping issues, such as design defect and failure to warn, have motivated courts to attempt aggregation of mass tort cases into class actions.(fn5) Yet these attempts have been frustrated by the strong presumption in American jurisprudence that every individual has a right to a day in court.(fn6)

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In the face of academic criticism and judicial pleas for help, others support individual claim autonomy as a means to preserve the notion of corrective justice.(fn7) Rather than focus on the efficacy of tort law at serving societal functions, corrective justice proponents often argue tort law is inherently self-justifying, which, of course, begs the question: "Why does tort law exist?"(fn8) In addressing that question, this Article examines the political philosophy of John Locke and argues that legal formalism is necessary for restraining government and instilling the rule of law but that the particular form of law adopted by a jurisdiction should reflect society's substantive policy goals. The law's form should reflect its function.

Part II of this Article provides an overview of America's mass tort debate. Part III proceeds to defend rule-of-law formalism in so far as it serves society's needs but rejects arguments for retaining certain legal formalities merely for tradition's sake. Part IV discuses the political philosophy of John Locke and reveals Lockean political philosophy's implications for the relationship between form and function in the law in general and the mass tort problem in particular.

II. THE MASS TORT PROBLEM

The common law tort system provides a civilized means for an injured party to address a grievance against an alleged tortfeasor and seek compensation for harm.(fn9) This system has been said to have many (at times overlapping and inconsistent) functions, including corrective justice, optimal deterrence, loss distribution, compensation, and redress of social grievances.(fn10) The American tort system was developed in Great Britain prior to the Industrial Revolution, was exported to the United States, and has evolved under the watch of judges practicing the common law tradition.

Despite its developments, the modern tort system is largely a vestige of a simpler time. The tort system is an expensive and inefficient method for achieving any of its purported goals. A 1986 study estimated that plaintiffs typically turn over one-third of their damage

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awards for attorney fees and litigation expenses.(fn11) Additionally, defendants' legal fees equaled approximately fifteen percent of damages awarded in tort suits.(fn12)

In the late Nineteenth Century, the Industrial Revolution gave rise to a new problem for tort law to address: mechanized accidents.(fn13) The economic and social implications of industrial accidents called into question the efficacy of tort law in an industrialized world.(fn14) The tort system's failure to adequately address industrial injuries caused legislatures to devise workers' compensation programs deemed to better meet society's needs.(fn15)

Mass torts are again calling into question the tort system's ability to combat vast economic and social problems. As Professor John Goldberg surmises, "[W]e have asked too much of [tort law]. . . . [It] is not well-suited to solve the large-scale social and political problems it is being asked to solve (if only by default)."(fn16)

A. The Mandatory Class Action Approach to Mass Tort

The traditional tort law system is ill-equipped to handle cases related to mass-produced products.(fn17) Over twenty-five years ago, Professor David Rosenberg noted that mass exposure cases were arising with increasing frequency due to mass production.(fn18) The damages allegedly caused by any one mass-produced product and the costs associated with litigating claims related to such a product can reach hundreds of millions or even billions of dollars.(fn19) Individual mass tort adjudication is particularly problematic because proof of complex scientific and medical claims requires significant investment by plaintiffs whose fractional interests in their anticipated judgments create little incentive to litigate compared to the highly-concentrated incentive of mass tort defendants.(fn20) These costs can become prohibitively

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expensive to the individual plaintiff due to the complexity of medical evidence and expert witness testimony: "The system's case-by-case mode of adjudication makes mass exposure litigation needlessly expensive by requiring separate and repeated determinations of various complex issues, such as those regarding causation, that are common to all the claims arising out of any single mass exposure event."(fn21) The Rand Corporation estimated that sixty-one percent of money transferred in asbestos cases is attributable to the transaction costs of liti-gation.(fn22) Class actions allow plaintiffs to share the costs of proving such claims, thus making litigation more efficient. Further, forcing plaintiffs to consolidate claims reduces the litigation expenses incurred by defendants, eliminates redundancies in litigation, avoids the risk of inconsistent judgments, and prevents plaintiffs from strategically gaming the system against defendants.

In addition to the crippling costs of individual litigation, the traditional tort system is ill-suited to mass tort cases involving complex scientific questions. Commenting on how the legal profession and academy has lived up to the ideas expressed by Justice Oliver Wendell Holmes, Jr., in The Path of the Law,(fn23) Professor Rosenberg noted:

To be sure, tort liability plays a useful role in cases in which the courts essentially enforce generally accepted scientific opinion, as they do in the asbestos context. But the spectacle of silicone breast implant plaintiffs asserting claims that were scientifically dubious but that nevertheless resulted in a multi-billion dollar settlement (while bankrupting a major pharmaceutical company) raises questions about the wisdom of allowing tort law to venture into areas of scientific debate and impose its traditional all-or-nothing judgments regardless of the degree of scientific uncertainty.(fn24)

A particular problem arises concerning the specific causation re-quirement.(fn25) One paradigm of mass tort cases involves product liability claims against firms that produced fungible pharmaceutical agents or products containing asbestos or silica.(fn26) When several firms introduce fungible products into the market that cause diseases with long latency periods, proof of which firm supplied the particular product that caused any individual plaintiff's particular harm is often a near-impossible hurdle...