October 9, 2007
In recent thoughtful blog posts here and on Drug and Device Law, informal bellwether trials have been singled out as a potential answer to the problems of caused by mass torts in multi-district litigation. Both Erickson and Beck/Hermann support bellwether trials with the caveat that they are a second-best solution. I agree, but I think that mandatory bellwether trials should get a second look, a point I argue in an article (fittingly called "Bellwether Trials") that I just posted on SSRN (available here) and on bePress (available here).
The Article makes two points. First, a democratic justification for permitting mandatory bellwether trials can balance out the autonomy concerns that this form of collective justice raises. Tort trials are understood as an atomistic enterprise. The jury trial, however, realizes not just individualistic but also democratic values that can help justify mandatory bellwether trials. This argument is different from the utilitarian arguments made by Beck/Hermann and in most of the scholarly literature on the subject. Second, although it is generally believed that bellwether trials are unconstitutional, I show that this is not the case. Although the Seventh Amendment has been seen as an absolute barrier to bellwether trials since the Fifth Circuit's decisions in Cimino v. Raymark Industries, there is significant historical and doctrinal material supporting the constitutionality of binding bellwether trials.
Of course, there are problems with bellwether trials. For example, bellwether trials may create distributional injustice because the process of averaging verdicts redistributes wealth from those plaintiffs that would have received larger verdicts to those that would have received smaller ones. On a similar note, permitting opt-outs in a mandatory bellwether procedure may cause plaintiff flight as plaintiffs realize that their larger expected verdict will be reduced by the averaging process, which even if refined somewhat is necessary for the procedure to work. I provide some responses to these concerns in the piece.
One of the questions raised by the continuing use of bellwether trials is why our system so easily tolerates the use of informal procedures to reach settlements that would be impermissible if they were formalized and mandated by a court. The traditional response is that consent justifies settlements where litigation would be impossible, and bellwether trials encourage settlement. But most observers recognize that consent is a pretty thin justification in the mass tort context. So does that mean expedience is the real justification? That does not seem good enough.
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