76 Pages Posted: 6 Jan 2017 Last revised: 1 Jun 2017
Date Written: January 2, 2017
The approach of the twentieth anniversary of the Supreme Court’s landmark decision in Amchem Products, Inc. v. Windsor provides the opportunity to reflect on the collapse of the framework it announced for managing intra-class conflicts. That framework, reinforced two years later in Ortiz v. Fibreboard Corp., was bold, in that it broadly defined actionable conflicts to include divergent interests with regard to settlement allocation; market-based, in that it sought to regulate such conflicts by harnessing competing subclass counsel’s financial incentives; and committed to intrinsic process values, insofar as, to assure structural fairness, the court was willing to upend a settlement that would have solved the asbestos litigation crisis. Since the 1990s, the lower federal courts have chipped away at the foundation of that conflicts management regime, by limiting Amchem and Ortiz to their facts, narrowly defining the kinds of conflicts that warrant subclassing, and turning to alternative assurances of fairness that do not involve fostering competition among subclass counsel. A new model of managing class conflicts is emerging from the trenches of federal trial courts. It is modest, insofar as it has a high tolerance for allocation conflicts; regulatory, rather than market or incentive-based, in that it relies on judicial officers to police conflicts; and utilitarian because settlement outcomes provide convincing evidence of structurally fair procedures. In short, the new model is fundamentally the mirror image of the conflicts management framework the Court created at the end of the last Century. This Article provides an institutional account of this transformation, examining how changes in the way mass tort and other large-scale wrongs are litigated make it inconvenient to adhere to the Supreme Court’s Twentieth-Century conflicts management blueprint. There is a lesson here: a jurisprudential edifice built without regard to the practical realities of resolving large-scale litigation cannot stand.
Keywords: class actions, conflicts, ethics, multidistrict litigation, mass torts
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