Revisiting the Monster: New Myths and Realities of Class Action and Other Large Scale Litigation
Hensler, Deborah R., Duke Journal of Comparative & International Law
In 1979, Professor Arthur Miller published an article contrasting the myths and realities of class action litigation in the United States. To some, Professor Miller wrote, the class action lawsuit seemed a "Frankenstein monster," while to others it appeared as a "knight in shining armor." In truth, he argued, class action litigation neither posed the monstrous burdens and risks perceived by its opponents, nor did it offer the promise of achieving an ideal society in our time.(1)
Professor Miller wrote during an era of high controversy in the United States about class action litigation. In 1966, the Civil Rules Advisory Committee had amended the federal class action rule--Rule 23--in important ways.(2) Although some members of the committee said their goal was to facilitate civil rights and other class actions aimed at social reform,(3) to the business community it looked as if the as if the main effect had been to spur more and bigger as if the main effect had been to spur more and bigger damage class actions against them.(4)
Today there is again a sense that monsters are loose in the land. Some believe that American courts are overrun with class litigation--a phenomenon that is about to inundate the courts of other countries as well. Many ordinary Americans seem to think that class actions are a new-fangled litigation device invented by greedy plaintiff attorneys. (Outside the United States, the characterization is "greedy American plaintiff attorneys.") Many American legal scholars seem to think that mass tort litigation and its attendant challenges for courts are a result of certifying mass tort lawsuits as class actions. Many American journalists who have been following the litigation against tobacco companies, gun manufacturers, and managed care organizations (including class and non-class lawsuits) seem to think that using class actions to pursue social policy reform is a new idea. It is harder to find shining knights in popular and professional discourse defending class action litigation than it was twenty-five years ago.(5) But today, as yesterday, there is a need to distinguish class action myth from class action reality.
For the past several years, with colleagues at the RAND Institute for Civil Justice, I have been studying class actions for money damages in the United States.(6) In separate studies, my colleagues and I have also sought to understand the challenges to the legal system posed by mass torts.(7) I have also become interested in the new social policy torts: suits against tobacco and gun manufacturers and against managed care organizations ("HMOs"). What follows is a synthetic analysis of the nature of class action and other large-scale litigation in the United States at the beginning of the new millennium, drawing on these and other data,(8) and informed by the theoretical scholarship of colleagues in the legal academy.(9) Section II discusses varieties of large-scale litigation and presents some data on usage patterns. Section III discusses litigation practices in damage class actions. Section IV discusses litigation against tobacco and gun manufacturers and health care organizations, litigation partially intended to change public policies in the relevant domains. Section V closes with some comments on likely future trends.
II. ONE MONSTER, OR MANY?
The term "class action" is sometimes treated as if it were synonymous with "large scale litigation" or "mass torts." By "large scale litigation," I mean litigation comprising large numbers of like claims--hundreds, thousands, tens of thousands, or even more--pursued more or less collectively in what this conference's organizers have termed "group litigation."(10) By "mass torts," I mean large-scale personal injury or property damage litigation arising out of product use or exposure. In fact, in the United States, there are a variety of devices for pursuing large-scale litigation other than the class action, including multi-district litigation, formal consolidation, informal aggregation, and bankruptcy. …