Reflections of a Recovering Aggregationist

Abstract

The past fifty years have experienced a radical reformation of civil litigation in American federal courts, with the judiciary and the rulemakers constantly attempting to conform civil procedure to the changing landscape of modern technological society. Beginning with the landmark rule revision package of 1966, which amended the entire array of joinder rules, federal civil procedure since then has been in a constant state of revision, amendment, and doctrinal elaboration. Many of the federal civil rules have been modified in some fashion; with some rules undergoing wholesale rewriting, while others have experienced tinkering at the edges. Moreover, throughout this period the courts have continued to amplify (or obfuscate) doctrines of personal and subject matter jurisdiction, pleading, and applicable law, with each new elaboration raising public policy debates surrounding access to justice.

Perhaps one of the most significant developments in the past fifty years has been the advent and domination of the litigation arena by large scale aggregate litigation. Spurred on by the 1966 amendment to the class action Rule 23 and the enactment of a multidistrict litigation statute in 1968, the litigation landscape in the 1970s experienced the first rush of public law and institutional reform litigation. This was followed swiftly by onslaught of mass tort litigation, which cases dominated public policy debates of the 1980s and 1990s. By the turn of the twenty-first century, the mass tort class action gave way to second and third generation aggregate litigation, with multidistrict litigation and aggregate settlement procedures prevailing as a preferred mechanism for resolving large-scale complex litigation.

Champions of the twenty-first century aggregate dispute resolution mechanisms largely base their policy arguments on rhetoric similar to that first advocated during the heyday of mass tort litigation in the 1980s. Advocates of current MDL procedures, settlement classes, non-class settlements, and the quasi-class action have imported rationales that were used to justify novel class action techniques during the 1980s. Ironically, however, proponents of the new aggregate litigation techniques point to the failure of the class action rule as a primary justification for the deployment of non-class aggregate techniques to resolve multiple claims.

This article questions the wisdom of engrafting the rhetoric and rationales that justified the mass tort litigation movement of the 1980s to support novel aggregate litigation mechanisms in 2015. It concludes that the current twenty-first century aggregation movement, with its roots in the 1980s mass tort litigation crisis, has devolved into problematic mass claims settlement mechanisms of dubious fairness and troubling process concerns.

Keywords: Class actions, Rule 23, multidistrict litigation, MDL, MDL procedure, equity, Vioxx litigation, attorney fees, Professor Steve Subrin, non-class aggregate settlements, class action settlements, due process in class litigation