A response to Professor Francis E. McGovern's paper entitled Toward a cooperative strategy for federal and state judges in mass tort litigation.

AuthorVeasey, E. Norman
PositionMass Torts Symposium - Response to article by Francis E. McGovern in this issue, p. 1867

Professor McGovern's paper raises three fundamental issues:

(1) Whether we are sure that we have identified the problems of today and tomorrow, and not the problems of yesterday;

(2) The assumption that there are several problems with mass torts;

(3) Fundamental federal/state problems in addition to all the problems associated with case management (including cost, delay, and judicial resources).

The overarching tension is between federalism and federalization. Assuming that today there exists a massive dislocation caused by mass tort litigation, and that the dislocation can reasonably be projected in the future, we need to find a comprehensive solution to the federal/state systemic issue. The question is whether we will be able to make progress only at the margins or whether we can make a real difference. If the problem is one of continuing massive dislocation, then I see the issues breaking down into three major categories:

  1. Encouraging protocols that involve cooperative strategies for joint management techniques among state and federal judges managing the same or related mass tort litigation. As Professor McGovern notes, there is some de facto cooperation that has worked well in certain instances. But do we need institutional changes?

  2. Making changes in court rules to impose or encourage cooperative strategies. In the federal system, this could be done through the Rules Enabling Act process. Judge Niemeyer's Advisory Committee on Civil Rules has such work in progress. Corresponding model state rules could also be developed with the aid of the National Center for State Courts ("NCSC") and the State Justice Institute ("SJI"). Additionally, there could be accompanying changes in the Manual for Complex Litigation.(1)

  3. Changing the statutory construct at the federal level. This could be problematic for a host of reasons. Perhaps emphasis at the state level through some form of model or uniform rules or laws would be more feasible.

    The Report to the Chief Justice on Mass Tort Litigation of February 15, 1999 recommends a process to study these and related issues by an ad hoc working group that includes a representative of the Conference of Chief Justices ("CCJ").(2) That proposal is good, but apparently it is not currently a viable option.

    Professor McGovern notes "institutional support" within the state judiciary. There are three aspects to this issue:

  4. There are more resources at the state level. Over 95% of all litigation and roughly the...

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