Mass Tort Litigation and the Dilemma of Federalization

43 Pages Posted: 28 Jan 2013

Date Written: January 1, 1995


There are and always have been four basic methods that law reformers could use to design a set of choice-of-law rules for mass-tort cases. The first is simply to enact federal substantive tort or products liability legislation that would incorporate not only substantive legal standards, but also jurisdictional provisions, limitations requirements, and available remedies. In one fell swoop, then, Congress could, if it wanted to, “solve” the entire array of mass-tort litigation problems.

But, . . . there has not to date been a general clamor for substantive mass-tort law reform, which suggests that legislative politics are working either too well or too poorly. This is unfortunate because in the absence of serious consideration of substantive mass-tort law reform, reformers must instead cobble together all the separate pieces of mass-tort litigation: rules for aggregate consolidation, jurisdictional predicates, remedies, and choice of law, to name a few. Rather than having one politically unpleasant substantive tort statute, we now have a collection of analytically unpleasant procedural proposals. It is also interesting to note that none of the major institutional law reform organizations ― the ABA, the ALI, and Congress ― have ever seriously even mentioned the possibility of substantive mass-tort legislation.

The prodigious efforts of the American Bar Association (ABA), the American Law Institute (ALI), and Congress during the last decade to design some means for handling mass tort litigation provides an object lesson in law reform, although it is difficult to discern the lesson. The ABA's Mass Tort Report collects dust somewhere; the ALI's Complex Litigation Project will sit like an intellectual colossus next to its Study of the Division of Jurisdiction Between State and Federal Courts; and Congress is still puttering with yet a new version of the Multiparty, Multiforum Jurisdiction Act. Everything has been studied, but nothing has been done. Meanwhile, mass tort litigation continues to flood state and federal dockets, with new kinds of “mass tort” litigation arising every few months.

The case for federalizing mass tort law, then, must stem from some sense that aggregate mass tort litigation represents a whole that is larger than the sum of its parts. If mass tort litigation reasonably is to lay claim to preferential federal court jurisdiction, then it must be because this litigation phenomenon has developed some critical mass of characteristics that compel a unified federal rather than state approach. In truth, experience teaches that state courts are quite capable of handling mass tort litigation. In this regard, the parity debate is somewhat unhelpful in assessing whether mass tort litigation is a good candidate for federalization.

That mass tort litigation presents a particular federalization dilemma is evident in the schizophrenic recommendations to better process mass tort litigation. In striking fashion, these proposals similarly have suggested modifying existing federal consolidation doctrine and enacting a federalized choice-of-law regime. In essence, the reformers' preferred approach has been to split the mass tort baby: to federalize part of mass tort (applicable law), but not to federalize the rest.

One can only surmise that the law reformers were (and are) profoundly uncomfortable with the idea of completely federalizing mass tort, and their work product reflects a firm refusal to propose this solution. Thus, the mass tort reform projects embody a peculiar tension between theory and practice because although the reformers repeatedly invoke a national litigation crisis to justify their efforts, they steadfastly refrain from recommending a truly national solution through federalization of mass tort law. Indeed, even the Federal Judicial Center, in its recent summary of arguments opposing and favoring federalization of state law, has refrained from applying its analysis to the problem of mass tort litigation in federal court.

This Article sets forth a series of qualified arguments supporting federalization of mass tort litigation. These arguments proceed not from any particular constitutional or functional theory, but rather from the sense that “federalization is a complex process that engages many players and is driven by political, legal, economic, social, and pragmatic factors.” The starting point is agreement with the propositions that the “true role of the federal courts remains elusive,” and that the process of federalization “is bound to be marked by a certain ‘complexity and fuzziness.’ ” Moreover, federalization is “‘not only inevitable but even desirable in giving room for flexibility, fine-tuning, recognition of difference, and accommodation of unforeseen developments.’” Finally, these arguments are predicated on a belief that the goal of the dual court system “may become less a matter of achieving a principled allocation than of realizing the optimum utilization of each system.”

Part I evaluates the question of federalization of mass tort litigation in the context of analytical frameworks suggested by recent commentators. In assessing the issue of mass tort federalization against various criteria, mass tort litigation concededly presents a weak case for federalization. Mass tort litigation typically embodies few of the striking constitutional or prudential attributes commending federalization.

Part II then examines mass tort as a novel kind of litigation phenomenon that is not easily analyzed in the context of standard federalization theory. This Section describes and explores the salient characteristics of mass tort cases that set this litigation apart from other state claims, and therefore, support a stronger case for federalization.

Part III concludes with alternative arguments for federalization of mass tort litigation that are not easily assimilated into traditional federalization theory. This Section suggests that mass tort litigation ought to be federalized for three simple reasons. First, although some mass tort litigation has been successfully resolved in state courts, most mass tort cases are and will continue to be filed in federal courts. Because diversity jurisdiction gives mass tort litigation access to the federal courts, mass tort litigation has been largely de facto federalized. The camel's head (and indeed much of its body) is already inside the federal tent, creating difficult problems. Moreover, mass tort is not an instance of “creeping federalization,” but rather a catastrophic litigation phenomenon that has invaded federal courts in the last decade.

The second reason mass tort litigation should be federalized is because not only is much of mass tort litigation already in federal court, but arguably, many of these cases have been and will continue to be handled ineffectually until Congress federalizes mass tort law. Existing federal rules and procedures are inadequate to the tasks of dealing with mass tort litigation, a problem compounded by the lack of unified, governing, substantive tort law. Indeed, realization of these inadequacies in the mid-1980s prompted the institutional law reform projects. Mass tort litigation is a good candidate for federalization precisely because the federal courts are the preferred forum for these massive lawsuits, a choice unfortunately exacerbated by a lack of competent substantive law and procedural rules to handle these cases fairly and efficiently.

Moreover, existing procedural rules do not easily permit federal courts simply to relieve themselves of these cases by sending them to state courts. As long as diversity jurisdiction grants federal court access to litigants (either originally or by removal) federal courts will continue to be the forum of choice for mass tort litigants. At a minimum, reformers need to formulate their thinking about the allocation of these cases in light of this reality, rather than abstract comparative assessments of relative judicial competence.

The third and final reason for federalizing mass tort litigation is because not only are existing rules and procedures inadequate, but so are the reform proposals. After almost a decade of reform efforts, legislative solutions for processing mass tort cases have not been forthcoming. Even if Congress or the states now consider mass tort legislation, legislators ought not to adopt the various reform proposals precisely because these proposals combine procedural tinkering with half-baked federalization of choice-of-law rules. Mass tort cases ought to be entirely federalized or not, and in this regard, the major mass tort reform proposals are doctrinally incoherent. Thus, legislative enactment of these reform proposals will only further complicate mass tort litigation rather than enhance its resolution.

Keywords: Mass tort litigation, federalization, choice of law, American Law Institute, reform proposals, Complex Litigation Project

Suggested Citation

Mullenix, Linda S., Mass Tort Litigation and the Dilemma of Federalization (January 1, 1995). 44 De Paul L. Rev. 755 (1995), U of Texas Law, Public Law Research Paper No. 286, Available at SSRN:

Linda S. Mullenix (Contact Author)

University of Texas School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States
512-232-1375 (Phone)

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics