Resolving Aggregate Mass Tort Litigation: The New Private Dispute Resolution Paradigm

In one of the most famous law review articles ever written, The Role of the Judge in Public Law Litigation, Professor Abram Chayes in 1976 described a paradigm shift away from bipolar traditional litigation to a new model of public law litigation. More than twenty years later, at the end of the twentieth century, Professor Chayes's public law paradigm no longer accurately captures the terrain of complex disputes nor reflects the methods of private aggregate dispute resolution. In American jurisprudence, the end of the twentieth century has been the great era of aggregate private dispute resolution, a paradigm that shares some attributes of the public law model. However, the public law model differs in significant respects. Aggregate private dispute resolution has stretched the boundaries of the judicial function, arrogating to private parties and an array of judicial surrogates vast powers for resolving aggregate claims. This aggregative private dispute resolution paradigm resembles nothing so much as private legislation with wide-reaching effects, carrying the imprimatur of judicial oversight and approval, but frequently accompanied by troubling questions about fairness, adequate representation, and the subtle merger of legislative, administrative, and judicial functions.This article first canvasses Professor Chayes's articulation of the public law model, the context in which Professor Chayes generated his thesis, and the late twentieth-century expansion of the public law model to encompass mass tort litigation. The article then explains why the public law model is an inapt explanatory paradigm for mass tort litigation.The discussion then focuses on four dimensions of the late twentieth-century mass tort and other aggregate litigation that implicate special concerns about these cases and that suggest that the paradigm is closer to private legislation without meaningful representation. These include issues relating to solicitation, adequate representation, and the role of objectors and intervenors. This discussion also briefly canvasses problems of copy-cat litigation, forum-shopping, attorneys' fees, and other matters.The article concludes with broad observations on the need for a new descriptive model to capture the contemporary mass tort litigation paradigm.Obviously, we are now quite some distance from Professor Chayes's description of the public interest law paradigm. Mid-way through his analysis, Professor Chayes pauses to offer a “morphology of the public law litigation,” a model consisting of eight characteristics. The challenge for the contemporary commentator, then, is to formulate a “morphology” of the complex litigation that is now prevalent throughout the federal and state court systems.Contemporary mass tort litigation needs another Professor Chayes to weave together all these strands. After setting forth his morphology of the public interest law litigation, Professor Chayes concluded: “In fact, one might say that, from the perspective of the traditional model, the proceeding is recognizable as a lawsuit only because it takes place in a courtroom before an official called a judge.” That insight applies with equal force to contemporary aggregate tort litigation. But we need a theoretician with greater analytical power and a more descriptive vocabulary than me to accurately capture the new mass tort paradigm.