THE RISE AND FALL
OF THE MASS TORT
In terms of timing, the emergence of mass tort litigation roughly parallels the development of the modern class action in procedural law. Forerunners of the modern class action include proceedings in which a medieval town or a nineteenth-century fraternal organization sought to bind its members collectively through litigation on their behalf.1 The modern class action, in other words, traces its origins to litigation brought on an aggregate basis by entities with some manner of governing authority over their members. This chapter argues that a conception of the modern class action as an arrangement for governance sheds considerable light on the use of that device in the mass tort context.
Before turning to the specifics of class actions involving mass torts, a brief introduction is in order—first, about the basics of the class action device and, second, about the organization of the discussion thereafter. The class action stands as an exception to the bedrock principle of civil procedure that a person's legal rights cannot be altered by a judgment rendered “in litigation in which he is not designated as a party or to which he has not been made a party by service of process.”2 The class action raises the prospect of one or more persons—the class representatives named in the complaint—suing on behalf of other, similarly situated persons. Those persons then stand to be bound by the judgment in the class action, even though they are not otherwise parties to that proceeding.3
In economic terms, the class action confers a monopoly on class counsel with regard to the legal representation of class members. The class action enables class counsel to obtain as their clients the absent members of the class—those other than the class representatives—through the operation of a procedural rule rather than the usual, more cumbersome way: identi