THE SHORT LIFE AND LONG AFTERLIFE OF THE MASS TORT CLASS ACTION.

• Author: Marcus, David
• Position: Special Issue on Class Actions

INTRODUCTION 1566 I. ORIGINS 1567 A. Early Reluctance 1567 B. Two Judicial Mavericks 1572 II. AMCHEM 1575 A. The Failed Alternatives 1576 1. The Failure of Informal Aggregation 1576 2. The Failure of Formal Aggregation 1578 B. The Institutional Commitment 1580 1. Chaos 1580 2. Judicial Control 1583 3. Following Instructions 1585 C. The Collapse 1587 D. The Weight Litigation Can Bear 1589 III. THE AFTERLIFE OF THE MASS TORT CLASS ACTION 1592 CODA? 1596 INTRODUCTION

Modern class action litigation began in 1966, when the Federal Civil Rules Advisory Committee completed a revolutionary set of revisions to Rule 23 of the Federal Rules of Civil Procedure. Fifteen years of tumult followed, as the legal community struggled to test the new device's potential and identify its limits. The class action's waters then calmed, and by the end of the Reagan Administration, some viewed the Rule 23 experiment as nearing its end. (1) But the turbulence started again before the 1980s finished, and heated combat over class action law and policy has continued since then. The late 1980s and early 1990s were therefore a crucial period. During these years the class action moved onto the evolutionary course it continues to follow.

Several episodes triggered policymakers' reengagement with class action law during these years. But perhaps most consequential was the short but supercharged life of the mass tort class action. I tell this story here, as an installment in my series on the history of the modern class action. (2) My focus is the constellation of events that led to Amchem, (3) the stunning class settlement proposed in 1993 to resolve millions of asbestos-related claims. Although the story of the mass tort class action has several important chapters, the Amchem one is surely the first among equals, for the potential it had to remake the law of complex litigation, and for its pervasive and lasting influence on class action doctrine. Had Rule 23 proven able to encompass mass tort litigation, it would have shown its mettle in Amchem. The settlement's failure largely ended the mass tort class action experiment, at least for two decades. (4)

The mass tort class action's story has abundant intrinsic interest, but it is worth telling for other reasons as well. First, its short life began and ended at a key moment in litigation history. The modern class action debuted during an era when the institutional footprint of private civil litigation expanded considerably. (5) This development sparked a reaction, as critics faulted with increasing vehemence a perceived surfeit of judicial power exercised through the supervision of litigation. By the early 1990s, class action law and policy had become an important front in a larger war, fought over the right response to a basic query--how much weight can private civil litigation legitimately bear? (6) The failure of the mass tort class action, coinciding with other developments, provided a more restrictive answer. Second, the episode has had a long afterlife, one that has continued to influence the law of complex litigation. The mass tort class action contributed significantly to an important shift in the governing structure for the supervision of class action doctrine. This shift has ensured that a restrictive legal regime regulates Rule 23's administration.

Part I describes the origins of the mass tort class action in the path-breaking decisions of two judicial mavericks in the early 1980s. Amchems story comes in Part II. Part III documents the lasting influence the mass tort episode has had on the governance of class action doctrine.

1. ORIGINS

   A proper understanding of the origins of the mass tort class action requires a simple conceptual distinction. (7) From the earliest days of the modern class action, judges and policymakers understood that Rule 23 might have relevance for mass accident litigation, or the litigation of multiple claims arising from a single, localized catastrophe like an airplane crash. (8) The possibility that Rule 23 would intersect with dispersed mass tort litigation--the litigation of personal injury claims arising from the diffuse exposure to injurious products or substances--seemed more remote. Even Rule 23's most ardent champions excluded it from their sense of the class action's domain. Only in the early 1980s, with decisions by two judicial mavericks, did the link between the class action and dispersed mass tort litigation really emerge.

   1. Early Reluctance

      The use of aggregative techniques to manage dispersed mass tort litigation only began in the early 1960s, (9) making the class action's relevance hard to imagine. But the members of the Advisory Committee that authored the 1966 rule certainly anticipated that mass accident litigators might attempt to use the new Rule 23. (10) Concern that class actions might generate binding judgments for a large group of accident victims helped to derail an effort to revise Rule 23 in the early 1950s. (11) When the revision process began in earnest in the early 1960s, the specter of a collusively litigated mass accident class action rigged to settle personal injury liability cheaply haunted the Advisory Committee. (12) The committee ultimately agreed that "a very exceptional mass accident case could qualify" under Rule 23(b)(3), given class members' rights to opt out. (13) Some members found the mass accident class action a less discomfiting prospect. (14) But the committee anticipated the use of other tools, not Rule 23, for the aggregate management of personal injury claims. (15)

      The judicial attitude toward Rule 23's use for air crash cases and the like remained tentative and unsettled throughout the 1970s. (16) Choice of law problems, the superiority of other mechanisms for case management, and the interest of individual litigants in personal control of valuable claims created obstacles to certification. (17) When the Advisory Committee surveyed federal judges in 1977 and asked whether "Rule 23 is capable of disposing efficiently of mass accident claims," slightly more than half answered yes. (18) In contrast, federal judges uniformly refused to certify dispersed mass tort classes until the very end of the 1970s. (19)

      This disinclination reflected the distance between the realities of personal injury litigation, on one hand, and the primary normative foundation for a powerful class action device that those who favored class litigation laid during Rule 23's first era, on the other. To the new rule's critics, class certification and the approval of class settlements required judges to wield extraordinary, arguably illegitimate, power. To find that common issues of law and fact predominate over individual ones, judges had to adjust the substantive law, to downplay individual legal and factual issues as marginally relevant to the adjudication of the defendant's liability, or to remake these issues into common ones. (20) To impose a class-wide judgment or approve a class-wide settlement, judges wrested control over claims from their individual owners. (21)

      Proponents of an aggressive, powerful Rule 23 defended what I have called a "regulatory conception" of the device as a response to such concerns. (22) By their view, the class action's primary objective was not individual compensation but regulatory efficacy, or the successful alteration of defendants' behavior through the vindication of substantive liability regimes. A class action properly targeted the aggregate effects of the defendant's conduct as experienced by a group of undifferentiated regulatory beneficiaries. Without aggregation, claims would lie dormant, and regulatory regimes would go unenforced. For these reasons, supporters argued, judges could rightly downplay conflicts of interest among individual class members, overlook or deemphasize individual legal issues that differed from one class member's claim to the next, and soften due process protections for class members. By stressing common issues over individual ones, courts could facilitate class certification, enable aggregate adjudication, and thereby ensure that the class action discharged its regulatory task.

      Complaints about the illegitimate exercise of what amounted to law reform power through the supervision of litigation rang more hollow when cases really centered on defendants' undifferentiated treatment of all class members, (23) or when class members' claims had such marginal value that possibly no class member cared about losing control over their rights to sue. (24) But personal injury cases lacked these characteristics. (25) An alleged tortfeasor's liability often depends in large measure on proof of individual causation, an issue rarely amenable to aggregate adjudication. (26) Even issues that seemed common, like general causation, may not be so. Unlike other types of federal class actions in the 19705, (27) mass tort litigation implicated multiple states' tort law and for that reason the prospect that different bodies of law would apply to different class members' claims. Also, tort victims often have valuable claims, so concern about judicial usurpation of their individual control cannot be dismissed as formalistic. (28) Finally, the principal justification for the regulatory conception, that regulatory efficacy requires the sort of claim mobilization that only aggregation can generate, misfired for mass torts, where claim value incentivized plenty of individual litigation. (29)

      The class action figured importantly in a more general debate that raged in the 1970s about the legitimate size of litigation's institutional footprint. (30) What had begun in the 1960s as a technocratic concern over rising caseloads morphed the next decade into a darker narrative about a pathological "litigation explosion." (31) Critics of American civil justice lamented that excessive litigiousness among Americans (32) and judges' inability to keep frivolous or trivial claims off their dockets (33) meant...