A response To Professor Cooper.

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

Our hats are off to Professor Cooper for his production of a brilliant paper on the legal concerns presented by complex mass torts litigation.(1) His paper discusses the entire array of complex legal problems and issues raised by the adjudication of mass tort claims. The scope of this Response does not permit us to delve into the specifics of each of the topics that he has addressed; we shall therefore focus on what we believe are the larger issues.

To begin, Professor Cooper's proposed Mass Tort Statute, Mass Tort Civil Rule, and Settlement Class Rule each offer the current best conception of a total solution to the real problems encountered in mass tort litigation. Unfortunately, the quarrels about the various provisions of both proposals demonstrate that all of the constituencies represented here today simply cannot and, as a practical matter, will not, reach a full agreement about a solution. Much of the conflict inherent in these proposals rests in the evaluation of value-determined choices that perforce form the foundations for each attempt to create a workable, guiding statute or rule. Just a partial list of the competing values underlying this debate necessarily includes the differing attitudes on matters such as aggregation versus individualization of claims; the importance of process; tolerance for uncertainty; tolerance for the subjugation of individual claims which present a unique element of plaintiff fault, causation, and damage issues to the "great aggregate"; beliefs in the efficacy of opt-in versus opt-out provisions; perspectives on the fictional nature of legal representation in the mass torts context; and notions of the appropriate role of federalism.

For analytical purposes, let us grant, however, that the realpolitik at work means that Professor Cooper has made the right assumptions, especially with regard to the aggregation problem. Within this framework, we make the following points, focusing especially on process.

Professor Cooper's proposal illuminates three main points. The first, made abundantly clear by his careful exposition, is the rich and, we believe, overwhelming complexity of the problem. Although Professor Cooper describes a thoughtful--really, an exemplary--solution, we think it clear that a global solution is utterly beyond reach. The diversity of interests, along with the large number of constituencies that espouse them (plaintiff, defendant, and beyond), and the need for value-determined choices as discussed above, make such an endeavor a fruitless and frustrating pursuit.

The second point that Professor Cooper's analysis forces us to confront is that a meaningful solution must inevitably be the product of legislative action. We think this is clear because his thorough explication of the problems at work here shows that these are matters far beyond the limited competence of the courts alone, even under the most expansive possible interpretation of the Rules Enabling Act and similar state law provisions or doctrines. That fact does not mean that other mechanisms, such as rulemaking and didactic exercises like this conference, must be discarded. Such approaches can provide a meaningful aid to the development and operation of a well-tailored act or statute. But real change can be achieved only with a properly fashioned legislative enactment.

The last point we gather from Professor Cooper's presentation is that the usefulness of...