Mass Torts, Mass Culture: Canadian Mass Tort Law and Hollywood Narrative Film

Abstract:     
This article investigates the influence of American popular culture, and especially Hollywood film, on Canadian mass tort law. Until recently, mass tort suits were rare in Canada, being inhibited by a variety of legal and socio-legal barriers. But as the current influx of mass tort suits implies, these barriers are diminishing. Canadian mass tort law is moving closer to the American model, where mass tort litigation has been flourishing since the early 1970s.

I argue that cinema's influence on law may be greater than one might suppose. This may be especially true when the law is in a state of flux, or when tragic events generate a sense of social crisis. By helping to shape public attitudes towards contentious legal issues, movies and other forms of popular culture may affect law's development. This hypothesis is tested through a close reading of two recent Hollywood "mass tort films": A Civil Action and Erin Brockovich.

Part I describes the current state of Canadian mass tort doctrine. I first discuss the factors that have traditionally inhibited the pursuit of mass claims, and recount efforts to lessen those inhibitions. I then canvass critiques of the American mass tort system and highlight the political stakes inhering in the current debate surrounding reform initiatives. The purpose of these sections is to underline the contingency, fluidity, and political contentiousness of Canadian mass tort law and to show it may be particularly susceptible to the influence of (American) popular culture.

Part II discusses the movies. Both films tell populist stories about toxic tort lawsuits filed by small town residents claiming injuries from the contamination of their water supplies. Despite these similarities, however, the movies convey very different messages about the ability of civil litigation to correct injustice. Focusing on the representation of the protagonist-advocates in each film, I examine the specific narrative and cinematic techniques used by the filmmakers to generate these messages. This examination reveals that popular film has considerable capacity to influence (positively or negatively) public attitudes towards mass tort litigation. It also suggests that in an environment of heightened public cynicism toward lawyers and legal institutions, this capacity may be best realized under the particular filmic conditions present in Erin Brockovich but absent in A Civil Action: the coupling of an unconventional, anti-lawyer protagonist with a conventional, emotionally satisfying narrative arc. As a consequence, Erin Brockovich's unabashed pro-litigation message is likely to have a much greater impact on Canadians' attitudes toward mass tort lawsuits than A Civil Action's more skeptical position.

Keywords: Film, mass torts, popular culture, civil procedure, movies

Accepted Paper Series