Bellwether Trials

Abstract

At the core of the controversy over mass torts lies a fundamental question: what justifies collective litigation? Scholars considering this question make one of two arguments. They either argue that collective justice must be limited by a process-based right to participation based on autonomy values, or they argue that collective justice is justified by utilitarian values and dismiss participation altogether. This Article presents a third alternative: that the democratic nature of the jury trial validates "group typical" justice, a subset of collective justice. The Article re-envisions the trial as a democratic enterprise, rather than solely an atomistic one. An innovative procedure that illustrates this democratic justification is the bellwether trial. In a bellwether trial procedure a random sample of cases from a mass tort is tried to a jury and the results extrapolated to the remainder of the cases. The practice of bellwether trials prompts us to think more deeply about the political economy of modern adjudication and the possibility of adapting our eighteenth-century common law institutions to the needs of twenty-first century society.

Keywords: Jury, Trials, Complex Litigation, Mass Torts