JUST AS hard cases make bad law, so does burdensome litigation sometimes give rise to dubious procedural devices designed to reduce those burdens. Nowhere is this trend more evident than in the adjudication of mass torts in the United States. No one could seriously doubt the overwhelming burdens caused by modern mass tort litigation in general and asbestos litigation in particular. Both state and federal courts have been inundated, making it all but impossible to render full and fair individualized adjudication of claims.(1)
MASS TORT DILEMMAS
Desperate situations dictate desperate measures. After all, when the alternatives appear to be litigation chaos, on the one hand, and the effective denial of relief under applicable substantive law, on the other, just about any procedural device likely to avoid either of these extremes seems attractive. History has demonstrated, however, that if society is not careful, desperate situations also will give rise to a loss of perspective and a sacrifice of enduring values. For this very reason the American system of government has chose to enshrine enduring societal values in the form of a written, counter-majoritarian Constitution. Few of those constitutionalized values are more central to the normative framework of the American political system than the concept of procedural due process, which is embodied in both the Fifth and 14th amendments of the federal Constitution, as well as in state constitutions. But because due process is inherently a malleable concept, its protections are too often shunted aside with relative ease.(2) This is especially true when the burdens caused by adherence to the dictates of due process are as overwhelming as they are in at least certain areas of mass tort litigation.
To some extent, it is wholly consistent with the analytical essence of procedural due process to modify litigation procedures in light of their costs and burdens. But due process does not guarantee an unchanging set of procedures, regardless of the interests and costs involved. Rather, it requires a pragmatically focused weighing process that accommodates competing social concerns. Regardless of which underlying normative philosophical focus one chooses, however, the concept of procedural due process cannot tolerate use of a weighing process that results in no procedures at all. No process cannot be deemed to constitute due process, lest the constitutional protection be rendered a hollow mockery. As I have written before of due process balancing, "a house without a floor is no house at all."(3)
Once one accepts the premise that at least some floor of procedural protection must be provided, the question becomes where that floor is to be erected. In the area of mass tort litigation, however, even a casual examination of the aggregation devices employed by courts or suggested by commentators reveals that most of them threaten core elements of due process theory. These devices undermine both the goals of achieving an accurate decision and of legitimizing the adjudicatory process in the eyes of the litigants.
To be sure, it is incontrovertible that use of the suggested aggregation devices would have the obviously beneficial impact of reducing the costs, burdens and time of the litigation process. But so would resolving each case by means of a coin flip. The question that must be asked about each suggested aggregation procedure is whether it inescapably contravenes the central values underlying procedural due process. If so, the benefits it may produce must be deemed insufficient to overcome due process concerns. Otherwise, the constitutional protection of due process will have been rendered meaningless--an unacceptable result.
Broadly described, there are four conceivable methods of resolving mass tort litigation by means of aggregation:
* Unlimited mass consolidation,
* Overlapping issue consolidation,
* Statistical sampling, and
* Settlement class actions. …