Common Law Courts in an Age of Equity Procedure: Redefining Appellate Review for the Mass Tort Era

80 Pages Posted: 12 Apr 2006

See all articles by Melissa A. Waters

Melissa A. Waters

Washington University in St. Louis - School of Law

Abstract

From expansion of tort liability rules, to novel claims aggregation and settlement techniques, to statistically derived liability and damages assessments, mass tort litigation is producing unprecedented innovations at every level of the federal legal system. What is particularly striking about these innovations is that they are almost exclusively the product of a handful of federal trial judges who specialize in mass tort cases. Because appellate courts lack the necesssary tools to supervise their decisions, these few mass tort trial judges are shaping the rules that govern the mass tort legal regime with little or no appellate supervision. The result is a dramatic imbalance of power between trial and appellate courts, one that hinders the proper development of the mass tort regime. This Article explores the historical reasons for this phenomenon, as well as its consequences for mass tort litigation. It argues that federal trial and appellate procedure have become increasingly uncoupled, with appellate courts relying on a common law-based procedural model while trial courts have adopted a much more flexible equity-based model. The Article examines the gradual evolution of appellate review in response to this phenomenon, as some appellate courts begin to shift from a common law-based model of appellate procedure to an equity-based model that recognizes the need for flexible interlocutory review in mass tort cases. It argues that further development of an equity-based model is essential to ensure a strong appellate voice in shaping the mass tort regime. In addition, the Article offers strategies for encouraging the continued development of an equity-based model, as well as guiding principles in choosing appellate review mechanisms for mass tort litigation. It concludes that a deliberate and systematic approach to interlocutory review, utilizing the writ of mandamus, can restore the proper balance of power between trial and appellate courts and ensure a strong appellate voice in the development of the mass tort regime.

Keywords: Mass tort, civil procedure, appellate courts, courts, appellate review, appeals, interlocutory, mandamus, common law courts, equity

Suggested Citation

Waters, Melissa A., Common Law Courts in an Age of Equity Procedure: Redefining Appellate Review for the Mass Tort Era. North Carolina Law Review, Vol. 80, p. 527, 2002, Washington & Lee Legal Studies Paper No. 2006-01, Available at SSRN: https://ssrn.com/abstract=895755

Melissa A. Waters (Contact Author)

Washington University in St. Louis - School of Law ( email )

Campus Box 1120
St. Louis, MO 63130
United States

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
169
Abstract Views
1,903
Rank
317,631
PlumX Metrics