Mass Torts and Due Process
64 Pages Posted: 14 May 2011 Last revised: 11 Apr 2013
Date Written: May 11, 2011
Almost all courts and scholars disfavor the use of class actions in mass tort litigation, since class actions infringe on each plaintiff's control, or autonomy, over the tort claim. The Supreme Court, in fact, has strongly suggested that protecting such litigant autonomy is a requirement of due process, and has done so in recent decisions concerning the class action, arbitration, preclusion law, and the Erie doctrine. In this article I argue that protecting litigant autonomy in the mass tort context is self-defeating, and, in the process, rethink basic tenets of procedural due process. Relying on recent property theory, I first show that protecting litigant autonomy in mass tort litigation causes collective action problems that undermine the deterrent effect of the litigation. Thus, protecting a plaintiff's autonomy over the claim leads to the very mass torts the claim seeks to prevent and remedy. Counterintuitively, this tragedy can be avoided by taking away each plaintiff's autonomy over the claim, such as through a mandatory class action. I then use the self-defeating nature of litigant autonomy in the mass tort context to reexamine the law of procedural due process. The result is a revision of what process is "due" that takes each plaintiff's individual interest in deterrence into account and impartially balances competing interests. I conclude that the law of procedural due process should end its preoccupation with the claim, and, in particular, a plaintiff's control over it. Instead, the law of procedural due process should take a context-dependent approach that takes into account the enforcement objectives of tort law and analogous liability rules.
Keywords: mass torts, due process, class actions, complex litigation, civil procedure, torts, property, tragedy of the commons
JEL Classification: K13, K41
Suggested Citation: Suggested Citation