33 Pages Posted: 28 Aug 2012 Last revised: 30 Sep 2015
Date Written: July 23, 2013
Commonality is a defining characteristic of mass-tort litigation. But mass-tort claimants typically do not share enough in common to warrant class certification. That is, commonality does not predominate. Yet, without class certification, judges cannot conclude these cases as a unit absent a private settlement.
This paradox prompts two questions. First, what level of commonality justifies aggregating mass torts, shorn of Rule 23’s procedural protections? And, second, should the federal judicial system continue to centralize claims with nominal commonality when judges typically cannot resolve them collectively absent a private settlement? This Article’s title suggests one answer: if minimal commonality continues to justify collective litigation, then the system should aggregate claims to resolve common concerns and then, as state laws or individual differences come to the forefront, disaggregate into smaller, cohesive groups whose members’ claims could be resolved collectively through public, judicial means, such as trials or dispositive motions. Disaggregating into smaller, more cohesive units could revive the use of issue classes, particularly when the class definition is correspondingly narrow.
Keywords: mass torts, multidistrict litigation, commonality, Rule 23, class actions, MDL, aggregate litigation
JEL Classification: K10, K13, K41, K40
Suggested Citation: Suggested Citation