Mass Tort Litigation and Inquisitorial Justice

Abstract

This article examines two developments in mass tort litigation: court-appointed experts and settlement class actions. First, it looks at the use of court-appointed technical advisors and scientific experts, such as the national science panel in the breast implant litigation. The article notes concerns over such experts, but generally applauds and encourages their use.

Second, the article looks at "settlement class actions," i.e., class actions certified for the purpose of approving a settlement already reached by the parties. Despite recent setbacks, especially the Supreme Court's decision in Amchem Products v. Windsor, settlement class actions remain a promising method for resolving mass torts. Because they present serious risks of collusion and inadequate representation, however, the article urges vigorous independent judicial scrutiny of the merits of the settlement terms.

Using a comparative perspective, the article suggests that these two developments represent an evolutionary shift in the direction of inquisitorial justice systems such as those of certain civil law countries. Court-appointed experts and judicial inquiry into settlement class actions resemble inquisitorial tools. Noting differences between the U.S. system and inquisitorial systems, the article explores the barriers that U.S. judges must overcome if they are to wield these tools effectively.