May 6, 2009
Weinstein: Some Pessimism About Aggregate Litigation
Judge Weinstein has published a short essay on the administration of complex litigations in a new on-line publication of the Cardozo Law Review called De Novo. The essay, entitled "Preliminary Reflections on the Administration of Complex Litigations" describes a few litigations in which the Judge acted as architecht of a large-scale settlement (what has been described as a quasi-administrative agency).
Judge Weinstein closes on a pessimistic note, arguing that the appellate courts have been so inhospitable to class actions and aggregations that it will now fall to regulators to prevent mass claims rather than the courts to adjudicate them. He writes: "There is a general hostility, I believe, particularly at the
appellate level, to class actions and other devices for efficient
administration of mass litigation." And he ends by writing "In the end, I must reluctantly conclude that the law—and
certainly I—have failed to rise sufficiently to meet the challenges of
modern litigation. We have not served the people as well as we should
The model for adjudication of mass torts was initially individual litigation, which gave way in the 1980's and 1990's to an administrative model. (For a great article making this argument see Richard Negareda, From Tort to Adminsitration in the Michigan Law Review - which for some reason the author has not put on SSRN, but when he does I shall link to it). Today the adminsitrative model still has some traction, but it seems that things are shifting. Zyprexia and Vioxx are far different than Agent Orange was. We're seeing a different type of judicial involvement which is geared more towards information gathering than actual adjudication, more private control over settlements, the total failure of the class action device to offer closer and the mechanism for an administrative regime. So what is next for mass torts? Can the current developments still be described as an "administrative" regime or is this something closer to an insurance model?
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