Problems in Complex Litigation

19 Pages Posted: 1 Feb 2013

Date Written: 1991


On August 10, 1990, ten federal district court judges from around the country, all handling large asbestos personal-injury dockets, issued an unprecedented order creating a mandatory, nationwide class action. The very fact that a group of judges had convened to take action regarding the disposition of mass tort litigation was a unique event in judicial history. Within a week of the judges' order, the Sixth Circuit struck down the novel class action plan, stating that it was “unable to find any Congressional authority for an ‘ad hoc national coordinating committee’ to issue orders as an Article III court.” The appellate court further stated that the federal judges had exceeded their article III constitutional powers in their efforts to coordinate asbestos litigation on a nationwide basis.

What had impelled the federal judges to take this unusual step that caused such a swift rebuke from the Sixth Circuit? The federal judges were reacting to the asbestos litigation crisis in federal court. Asbestos litigation, as a discrete mass tort phenomenon, began to appear on federal dockets in the late 1970s. The incidence of newly filed federal asbestos personal-injury and product-liability cases continues apace, without a correlative increase in the capacity of the judicial system to fairly and efficiently adjudicate these cases. As of January 1, 1990, approximately 30,000 asbestos cases were pending in all districts of the federal court system.

Although a significant number of these cases have been terminated through various means, statistics reflect a steady flow of new cases into the system, amounting to a net increase in pending cases. Moreover, while the cases in the 1970s were centered primarily in six judicial districts, the cases in the 1980s and 1990s are now dispersed throughout the entire federal system. Asbestos litigation has become the federal court system's Sisyphean task: no matter how efficiently the courts push asbestos lawsuits through the system, more cases are filed in the courts without signs of respite.

The judges' meeting and subsequent class action order seemed to appear from the blue. Indeed, some asbestos attorneys labeled the judges' behavior “really bizarre” and “getting stranger and stranger.” To many close observers of the mass tort phenomenon, however, the judges' action seemed a logical, if perhaps desperate, outgrowth of nearly a decade of frustrated attempts at legal reform. Immediate judicial action was necessary to remedy a litigation crisis in the face of legislative and executive lassitude. If institutional law reform groups could not induce change, and if Congress would not pass meaningful legislative measures, then the judges would take matters into their own hands and begin to address this complex litigation crisis. Predictably, the Sixth Circuit's response to the district court judges was “thou shalt not legislate.”

How had it come to pass that federal judges hoped to usurp the prerogative of legislators? The answer lies, in part, in surveying the last decade's complex litigation problems as well as the reform efforts that attempted to remedy this phenomenon. This Article outlines these problems; other Articles in this symposium analyze some of the institutional responses to coping with contemporary mass tort litigation.

To be sure, the concept of complex litigation is not new. Complex cases involving multiple parties, with claims dispersed over time and place, have existed as long as litigation has existed. As Professor Stephen Yeazell has taught, group action has a long lineage. The Federal Rules of Civil Procedure recognized collective action in the class action rule and encouraged increasingly complex litigation through various liberal joinder provisions.

Notwithstanding these procedural vehicles for adjudicating big cases, the complex litigation phenomenon did not fully evolve until mid-century. In the 1950s the federal courts experienced the massive electronics antitrust litigation, and in the 1960s the judicial system experienced vigorous prosecution of civil-rights class actions and institutional-reform litigation. Interestingly, this first experience with system-wide complex litigation revealed problems in the judicial branch's ability to fairly and efficiently adjudicate complex cases under rules and procedure then governing the system. This recognition, in turn, fostered the first reform efforts directed specifically at complex cases, resulting in the enactment of the multidistrict-litigation statute and the 1966 revision of the class action rule.

These large, complex cases have refocused attention on various inabilities of the judicial system to resolve these cases in a fair, expeditious, and equitable fashion. The academic literature of the 1980s is replete with discussion and analysis of the failure of the judicial system to adequately deal with this newer phenomenon of complex litigation. In turn, these new problems of complex litigation have fostered reform efforts by various academicians and institutional law reform groups, such as the American Bar Association, the American Law Institute, the Federal Judicial Center, and the Rand Institute for Civil Justice.

The purpose of this discussion is to outline the problems of complex litigation and to survey the kinds of questions that law reformers have grappled with in recent years. This discussion uses a wide-angle lens rather than a telescopic one; it aims for breadth rather than depth. The problems of contemporary mass tort complex litigation are clustered into a half-dozen related themes: (1) problems of litigant autonomy versus aggregative procedure; (2) problems of economics, efficiencies, and ethics; (3) problems relating to the failure of procedural rules and doctrine, including problems of constitutional dimension and federalism; (4) problems relating to ascertaining applicable law; (5) problems relating to post-aggregative procedure; and (6) problems relating to alternative dispute resolution.

Keywords: Asbestos litigation, complex litigation, law reform, class actions, Federal Rules of Civil Procedure, Congress

Suggested Citation

Mullenix, Linda S., Problems in Complex Litigation (1991). Review of Litigation, Vol. 10, No. 213, 1991, U of Texas Law, Public Law Research Paper No. 299, 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)

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