Reassessing the Magnetic Pull of Megacases on Procedure
37 Pages Posted: 16 Sep 2016
Date Written: September 15, 2016
Because tobacco litigation is widely touted as the biggest of all big cases, it seems worthwhile to reflect on the notion that big cases have been the driving force behind procedural change in this country for the last half century. If tobacco litigation is the biggest of all big cases, it should produce the most striking procedural developments. This paper addresses the question whether tobacco litigation has actually done so.
My review of tobacco litigation is that it has been a dud in terms of procedural innovation. Perhaps we should reexamine the entire theme of complex litigation as the sparkplug of modern procedural developments. As Professor Leubsdorf has recently written, the American belief that the adoption of the Federal Rules produced a revolution may be a myth. The idea that megacases have paved the way for further developments may also be a myth.
To evaluate these questions, I begin with a typology of complex litigation, finding three general groupings of such cases during the post-World War II era. I then connect those groupings to the main strands of procedural innovation during that period, and use the former champion of megalitigation — asbestos litigation — to show how one set of cases can produce myriad changes and attempted changes in procedure.
Against that background, I contrast the relatively limited impact tobacco litigation has had on procedure and offer some explanations why this seems to be the case. In conclusion, I suggest that the presumed connection between megalitigation and procedural innovation may be epochal rather than eternal, and that we may have come to a time when the main innovations will be substantive rather than procedural. Assuming so, tobacco litigation might be a symptom of a new reality, at least for mass torts, in which the scimitar of change shifts away from the proceduralists. But there remain reasons to expect that this change will not happen.
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