Mass Production Goods, Torts and Justice: The Problem of Opt-Out

Abstract

U.S. Judicial Conference endorsement of a "second opt-out opportunity" for class action settlements to supplement the option for pre-certification exit under Rule 23(b)(3) is retrograde. It represents a victory for the myopic "proceduralist" way of thinking and a loss for everyone whose welfare depends on federal class action enforcement of tort and other civil liability to prevent and compensate harm resulting from business risk-taking ("mass production risks"). To be sure, the Conference merely provides explicit authority for what is already widespread practice, but that hardly excuses making matters worse. Indeed, the Conference, as the author of the basically flawed 1966 revisions of Rule 23, had - and irresponsibly squandered - the legislative chance to make matters much better. At minimum, it should have applied advances in theoretical and empirical understanding of the social benefits derived from collectively adjudicating civil liability in business risk-taking cases not only to reject the "second opt-out," but also to eliminate the requirement for pre-certification opt-out.