David Marcus, ‘The Short Life and Long Afterlife of the Mass Tort Class Action’

… 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. 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? 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 insured 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. Amchem’s story comes in Part II. Part III documents the lasting influence the mass tort episode has had on the governance of class action doctrine.

David Marcus, The Short Life and Long Afterlife of the Mass Tort Class Action, 165 University of Pennsylvania Law Review 1565 (2017).

First posted 2017-10-20 07:13:32

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