Academic journal article Defense Counsel Journal

Procedural Due Process and Aggregation Devices in Mass Tort Litigation

Academic journal article Defense Counsel Journal

Procedural Due Process and Aggregation Devices in Mass Tort Litigation

Article excerpt

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)


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.

A. Unlimited Mass Consolidation

As the term implies, unlimited mass consolidation involves the combination of all existing mass tort cases concerning the same product or event filed in the same jurisdiction into a single proceeding. In federal court, this would be accomplished through the use of Rule 42(a) of the Federal Rules of Civil Procedure. Under this method, all aspects of the different cases are adjudicated as part of the same proceeding.

B. Overlapping Issue Consolidation

This may be accomplished through the use of either class actions pursuant to Rule 23 or the consolidation of cases that already have been filed by using Rule 42(a). Overlapping issue consolidation involves the adjudication in one proceeding of only those issues that will arise identically in all cases--for examples, the validity of the state of the art defense or, in the case of a single defendant, the appropriateness and amount of punitive damage awards. Under this procedural tool, non identical issues will be adjudicated individually.

C. Statistical Sampling

This is a controversial device employed prominently by Judge Robert Parker of the Eastern District of Texas in the Cimino asbestos litigation and is invoked only at the damage stage. He sought to employ what has been called a "lump sum" approach,(4) under which the jury was to hear evidence from 11 class representatives and 30 illustrative plaintiffs. half selected by each side. The jury was directed to render a damage award for all the plaintiffs based on evidence from the sample cases and expert testimony concerning total damages.(5) However, in In re Fibreboard Corp.(6) the Fifth Circuit rejected this approach and remanded.

Judge Parker subsequently employed a "stratified sampling" approach, under which he divided the population of more than 2,200 cases into five disease categories, and then randomly selected samples from each category to total 160 cases. He held jury trials on damages for each of the sample cases and combined the sample verdicts in order to arrive at a total damage award for each case in the total population of cases. He awarded each sample case plaintiff the actual verdict received at trial, after employing remittitur in some of the cases, and gave each of the remaining cases the average of the post remittitur sample verdict for its own disease category.(7)

D. Settlement Class Actions

This also is a controversial aggregation device. The concept envisions a class action to be certified on the condition that settlement be achieved. Thus, while both the certification process and the class action itself superficially resemble a traditional class action, in reality they are designed solely to provide the defendant with a form of global peace while simultaneously assuring the claimants of a fair share of the defendant's resources. Legal issues normally implicated in the course of litigation are irrelevant in this procedure.

E. What Price Due Process?

While each of these devices is designed to bring about a form of efficient justice, most of them present serious--and possibly fatal--procedural problems. Before the due process implications of the various aggregation devices can be evaluated fully, however, one must have some understanding of the values our system seeks to foster by guaranteeing procedural due process.


There is by no means universal agreement concerning the values sought to be fostered by the constitutional protection of procedural due process. Three broad based sets of values could arguably be promoted: (1) instrumental (or "accuracy" values, (2) non-instrumental (or "dignitary" values, and (3) accountability (or "democratic") values. While in some situations one could conceivable adopt one of the sets of values without simultaneously signing on to the others, it is important to note that these values are in no sense mutually exclusive. On the contrary, one could simultaneously accept all three. Indeed, one could reasonably adopt the non instrumental values as well as the instrumental values.

A. Instrumental Values

The most obvious goal sought to be achieved by procedural due process is attainment of a factually accurate decision. The connecting link between accuracy and due process is the belief that the adjudicator is more likely to find the facts correctly if the parties possessing both the strongest interest in the outcome and the greatest access to the relevant information are provided a meaningful opportunity to present their cases to the fact finder.(8) This reasoning provided the primary rationale for a series of U.S. Supreme Court decisions in the 1970s finding certain ex parte attachment procedures unconstitutional.(9)

As developed in this context, the concern for accurate decision making reflects a utilitarian concern for efficiency. Absent an accurate determination of the facts, the policies sought to be fostered by the governing substantive law will invariably be undermined. But an efficiency calculation necessarily involves a cost benefit assessment. The goal is not an airtight guarantee of accuracy, but rather an optimum combination level of accuracy and cost.

In seeking to implement a utilitarian concern, the Supreme Court in Mathews v. Eldridge fashioned a three pronged calculus for determining what procedures are dictated by due process:

First, the private interest that will be affected by

the official action; second, the risk of an erroneous

deprivation of such interest through the procedures

used, and the probable value, if any, of additional

or substitute procedural safeguards; and

finally, the government's interest, including the

function involved and the fiscal and administrative

burdens that the additional or substitute procedural

requirement would entail.(10)

As my coauthor and I wrote in an article some 10 years ago in describing the Mathews test:

[T]he Court looks only to the individual's interest

in the substantive right, totally ignoring any

"non instrumental" interest that the individual--or

society--may have in procedure for procedure's

sake. The word "fairness" did not appear in the

balancing test; the Court apparently chose to focus

upon considerations of economic efficiency


While the Mathews balancing test's roots exclusively in utilitarianism have been subjected to scholarly attack,(12) perhaps the greater potential difficulty with the test is its failure to guarantee a minimum floor of procedural protection. Because the test reflects utilitarianism's concern for the cost of accurate fact finding, it conceivably could lead to rejection of a particular procedure that concededly might improve the likelihood of accuracy in fact finding yet still not justify its costs. The test may thus give rise to "a structure within which an individual can possess an undisputed property interest--and thus, a clear right to due process--but have no right to any procedures at all. In other words, balancing can lead to the anomalous result than an individual will have a clear due process right to no process."(13)

B. Non-instrumental Values

It has been suggested that the procedural due process guarantee should be deemed to foster values above and beyond the utilitarian concern for accuracy.(14) These additional values are thought to derive from the normative premises that underlay our system of constitutional democracy, a system derived from a moral commitment to the principle of self determination. If only as a definitional matter, one cannot maintain a democratic system without at least some level of self determination by the citizenry. The essence of a democratic system, as philosopher Alexander Meikeljohn recognized, is that the people are the governors; elected officials are merely the agents of the people.(15)

The intersection between the individual and government that lies at the heart of constitutional democracy dictates a number of normative values to be served by procedural due process beyond the limited utilitarian goal of cost efficient accuracy, although the goal of accuracy is properly subserved within this broader, normative value structure. Initially, there is inherent in the choice in favor of a democratic system a belief in the individual citizen as a thinking, functioning, developing entity, worthy of respect.(16) While certain communitarian scholars have been all too willing to summarily dismiss the individualistic underpinnings of democracy,(17) such thinking is sadly misguided, for it ignores the simple fact that society is, ultimately, made up of individuals.

If the government does not afford those individuals respect for their dignity as self actualizing human beings, the democratic system cannot succeed. The relationship between private individuals and the state, moreover, underscores the need for maintaining the legitimacy of governmental operations in the eyes of the individual. Even if the use of certain procedures does not definitively reduce the risk of an erroneous decision, those procedures still may be properly deemed to be required by procedural due process if they are found to be central to the maintenance of individual dignity or necessary to the legitimacy of the judicial process in the eyes of litigants.

These values may appropriately be grouped under the heading "non-instrumental" for this very reason: they are intended to foster social interests that extend beyond the concern over effective implementation of governing laws. They may also be referred to as "dignitary," because they reflect the need for the judicial process in a democratic society to preserve and enhance individual dignity.

These broadly conceived non-instrumental values may be implemented by recognition of a number of sub values I have described as "the appearance of fairness," "equality," predictability "transparency rationality," "participation" and "revelation."(18) Together those sub-values are designed to increase individual integrity and the litigant's involvement in, sense of well-being about and satisfaction with the adjudicatory process. The Mathews test's apparent failure to incorporate these non instrumental values reflects an unwise and unfortunate truncation of the interests properly served by due process. The Court's mistake could be corrected with relative ease, however, simply by redefining the litigants' "private interest" element in the Mathews test to include these non instrumental concerns.

Such a redefinition would not automatically solve all of the problems created by the Mathews test, however, for the lack of a procedural floor imposed by the test would remain a serious concern. The equation of no process and due process that could conceivably result from invocation of the Mathews test represents an unacceptably cynical and meaningless interpretation of the Constitution. The Court in such a case is not saying to litigants that they are being denied due process rights because of competing concerns of efficiency. Rather, the Court would have litigants believe they have been afforded their due process rights but that those rights amount to nothing more than an empty vessel. Surely, our constitutional system is not benefited by such an interpretation.

Recognition of the need for a minimum floor of due process does not imply that due process determinations must be made in a cost vacuum. It means, simply stated, that at some point the concern for cost cannot be permitted to overcome the litigants' and the system's interest in assuring a fair decision-making process. The question whether the various aggregation devices that have been proposed for mass tort adjudication are consistent with the dictates of procedural due process cannot be answered by considering only cost savings and burden reductions. One must also inquire whether these devices so threaten the core values of accuracy and dignity that they must be deemed to violate due process, regardless of cost savings and "efficiency."

Before that inquiry, however, it is necessary to explore an additional rationale for the procedural due process protection. This rationale may not be obvious but nevertheless presents significant constitutional problems for a number of the suggested aggregation devices.

C. The Accountability Value

The instrumental and non-instrumental values underlying procedural due process both focus on the interests of individual litigants and the judicial system. But the constitutional protection may be deemed to foster a broader systemic political value as well.

Procedural due process assures that substantive laws enacted by representatives of the electorate and accountable to it are properly enforced. Use of procedures that have the effect of skewing the applicable substantive law subvert the democratic process by altering the governing law without informing the electorate that that law has been changed. That procedural alteration without a corresponding formal alteration in the substantive law is equivalent to the commission of a fraud on the electorate. The proper functioning of the democratic process dictates that the adjudicatory procedures employed to enforce governing substantive law not have the effect of indirectly altering the normative social policy choices embodied in that substantive law.


Application of procedural due process theory to the suggested aggregation devices in mass tort litigation reveals that the only device relatively free from difficulty under the due process clause is overlapping issue consolidation. The other three, in varying degrees, present significant threats to the values that underlay procedural due process.

A. Unlimited Mass Consolidation

Potentially most problematic of the aggregation devices from the perspective of due process theory is unlimited mass consolidation. Its use conceivably could be appropriate in a single disaster mass tort, at least as to the issue of liability, where the issues of fact and law are likely to be identical. But in the dispersed harm, mass tort contexts, unlimited consolidation amounts to a type of "cattle-car" justice in which no fact finder could be expected to resolve all the individualized issues of causation and damages.

Imagine, for example, unlimited consolidation of asbestos claims, where different plaintiffs with differing levels of exposure to products of different manufacturers also have differing levels of exposure to alternative carcinogens. Even the most dedicated finder of fact would find it impossible to ascertain the true circumstances surrounding each case and could not reasonably be expected to ascertain the actual damages suffered by individual plaintiffs.

Unlimited mass consolidation clearly undermines all the conceivable values served by procedural due process protection. Initially, the accuracy value (or, in terms of the Mathews test, "the risk of erroneous deprivation") is significantly undermined. Second, the mockery of the judicial process to which unlimited consolidation gives rise undermines the dignitary values served by procedural due process, by dramatically reducing the legitimacy of that process in the eyes of the litigants and effectively denying them the cathartic satisfaction of having been afforded a meaningful day in court. Finally, the widely varying results in individual cases will invariably skew attainment of the policy goals embodied in the governing substantive legal principles, thereby undermining the accountability values served by the procedural due process protection.

It might be responded that the significant cost savings achieved by unlimited consolidation justify the harm inflicted. Of course, there would be a dramatic reduction in litigation costs, and one could concede, if only for purposes of argument, that the cost of individualized litigation of each plaintiff s claim would be prohibitively high. However, the methodology of unlimited consolidation is so unlikely to achieve either an accurate result or to provide litigants with a sense of satisfaction with the judicial process that it cannot be deemed to be consistent with the requirements of procedural due process. Wherever the floor of acceptable process is ultimately to be placed, unlimited mass consolidation falls below it.

B. Overlapping Issue Consolidation

A considerably more rational cost-saving measure is overlapping issue consolidation. Under this procedure, only legal or factual issues that are truly common to all the claims will be resolved in a single proceeding. From a purely instrumental perspective, assuming adequacy of representation, which is guaranteed by both Rule 23(a)(4) and the due process clause itself,(19) there is no reason to believe that the likelihood of accurate fact finding is any less in a common resolution proceeding than in an individualized adjudication.

It is arguable that common resolution might undermine non instrumental values, at least to the extent that plaintiffs are denied the right to opt out of the proceeding. But while the Supreme Court has indicated in an unfortunately summary and conclusory statement that due process guarantees plaintiffs a right to opt out of common proceedings seeking monetary relief,(20) it is not immediately clear why this should be so. Our traditions do not require that potential plaintiffs have unlimited authority to choose the timing and forum of their suits, as both the Declaratory Judgment Act, 28 U.S.C. [sections] 2201, and the compulsory counterclaim provisions of Rule 13(a) demonstrate. It is true that common resolution through the use of overlapping issue consolidation may substantially reduce a litigant's ability to control his own litigation, thus undermining litigant autonomy, which arguably is protected by the dignitary values served by procedural due process.(21)

As a practical matter, however, it is highly unlikely that an individual plaintiff in a mass tort case would ever choose to exercise such control of his own litigation. While common resolution may undermine a plaintiff s choice of counsel, this autonomy interest is at least one step removed from the autonomy involved in the making of strategic choices concerning the conduct of the litigation. Assuming that the court is able to assure itself of adequacy of representation and the plaintiff s selected counsel is at least permitted to participate in the conduct of the litigation, the significant cost savings brought about by common resolution of overlapping issues should be deemed to justify whatever limited negative impact on dignitary values that might result from use of the process.

It should be emphasized that to conclude that common resolution of overlapping issues does not violate due process does not necessarily imply that the device is either advisable as a matter of social policy or authorized by existing law. The point is merely that the Constitution has not removed the normative issues from the realm of public debate or public choice.

C. Statistical Sampling

Perhaps the most controversial of all aggregation devices is the sampling technique. It is considerably more dubious, from a due process perspective, than overlapping issue consolidation, yet clearly more acceptable than unlimited mass consolidation. Reasonable people may differ concerning on which side of the constitutional line sampling falls.

To a certain extent, the constitutionality of sampling may turn on the statistical accuracy of the samples chosen as predictors of the absent plaintiffs' actual damages. This is an issue over which scholars have differed,(22) and on which I deem myself insufficiently schooled in the science of statistics to take a position. It should be pointed out, however, that the burden of proof on this question must fall squarely on the side contending that sampling does, in fact, produce accurate results. Due process dictates that any real doubt on that issue should be resolved against a finding of accuracy.

If one proceeds on an assumption of sampling inaccuracy, it is difficult to imagine how statistical sampling could be deemed constitutional. Every conceivable value fostered by procedural due process protection would be undermined by a sampling procedure that could not, with some level of reasonable certitude, be thought to project damages accurately across the class of plaintiffs.

Less doubt about sampling's constitutionality exists if such accuracy is assumed. From a purely instrumental perspective, the use of sampling under an assumption of accuracy would be appropriately seen as a cost efficient fact-finding method with little risk of erroneous deprivation, and therefore constitutional under a narrowly focused Mathews balancing analysis. Of course, this conclusion turns on how one defines the term "accuracy." The most commonly accepted definition of the term is that the total amount of damages owed by a defendant will roughly equal the sum total of what that defendant would have owed had each plaintiff s claim been individually litigated. At most, then, the procedure achieves defendant-based accuracy. It would surely be impossible for the methodology to produce an accurate determination of damages for each individual plaintiff. Hence, even from an instrumental perspective, sampling would have to be deemed unconstitutional as to individual plaintiffs.

Presumably for this reason, Judge Parker in the Cimino litigation required the plaintiffs' consent before employing the procedure.(23) While litigants may always waive their procedural due process protections,(24) to be effective that waiver must be truly voluntary. Commentators have legitimately questioned whether the expressions of consent by asbestos plaintiffs can be deemed voluntary, when their only alternative is the delay and uncertainty of the traditional judicial processes.(25)

When one adds the alternative due process rationales, however, the constitutionality of sampling becomes considerably more dubious, even from the defendants' perspective. This point may be seen by examining an arguable analogous situation. Assume that everyone agrees that a Gallup Poll taken the day before an election accurately predicts the outcome. Few people would believe that for this reason society need not bear the cost of the election and instead follow the poll results. The unacceptability of this practice does not turn on issues of possible inaccuracy; we have assumed universal agreement on that question. The unease about the suggestion must be attributed to different concerns--the belief that the legitimacy of a democratic system and the dignity of those who make up society require the actual participation of the citizehry in the governing process. It is arguable that a similar dignitary legitimacy analysis dictates that a defendant have the opportunity to litigate each plaintiff's damages, even if one were to assume that the end result of such a process would be roughly equivalent to the result of a sampling procedure.

It is true, of course, that if governing substantive legal principles were altered to replace mass tort plaintiffs' rights to actual damages with rights only to a predetermined percentage of a total amount of damages, neither plaintiffs nor defendants could successfully challenge the constitutionality of the use of the sampling procedure. The validity of the workers' compensation remedy, for example, is now well established, although the rights and obligations of both employers and employees were substantially altered as a result. But unless and until the relevant substantive law is altered, procedural due process dictates that the litigants be afforded a meaningful opportunity to establish their respective rights under the substantive law as it exists at the time.

In this sense, the constitutional protection of procedural due process seeks to assure that the representative democratic process functions in the manner intended, by preventing the governing substantive law, enacted through that process, from being modified furtively and indirectly through the use of procedures that skew that law. For this reason the Fifth Circuit's rationale for rejecting "lump-sum" sampling in Fibreboard may have more relevance to procedural due process concerns than might initially have been thought. The primary basis for the decision was the Erie doctrine and the inconsistency of the sampling procedure with the substantive products liability law of Texas.(26)

While the court's reliance on the Erie principles of federalism was perfectly proper, the court also could have held that the sampling procedure violated procedural due process, for the very reason that it improperly skewed the governing substantive law, regardless of whether the source of that law is the state or the federal government. As a result of this skewing, the sampling procedure denied to the litigants, both plaintiffs and defendants, the procedural right to have their substantive rights adjudicated in accordance with governing legal principles.

Assuming predictive accuracy, which is a big assumption, use of sampling procedures clearly does not entail the kind of threat to the defendant's procedural due process right presented by unlimited mass consolidation. Nevertheless, the procedure does deprive defendants of the opportunity to challenge the actual damage claims of each plaintiff before a neutral adjudicator when the governing substantive law demands an award of only those damages actually suffered by the particular plaintiff. Significant interests served by the procedural due process guarantee are undermined as a result.

D. Settlement Class Actions

Although many of the constitutional challenges to settlement class actions are without merit,(27) the procedural due process challenge is not so easily dismissed. The effect of a settlement class action is the forced extinction of the individual plaintiffs' rights to their day in court in exchange for an award that assures each plaintiff at least some recovery. In an important sense, such a procedure threatens absent plaintiffs' due process rights considerably more than does a litigation class action, in which plaintiffs will at least be afforded their day in court, if only collectively.

It is true, of course, that even a traditional litigation class action may settle. The difference, however, is that the formal purpose of the entire proceeding was not to divide the defendant's assets among the claimants in a fair manner, but rather to litigate the plaintiffs' claims in accordance with the law. The possibility that the case may settle exists in all litigation.

If the governing substantive law were altered so as to extinguish plaintiffs' products liability claims and replace them with a bankruptcy like, no fault, division of assets systems, it is likely that the resulting system would be found constitutional. However, until this substantive change is effected through resort to the democratic processes, where those making the alteration are representative of and accountable to the electorate, indirect alteration by what superficially is described as nothing more than changes in procedure should not be permitted.


It is easy to lose sight of enduring values when immediate needs become pressing. But it is precisely for this reason that the framers of the U.S. Constitution chose to codify those values in the form of counter-majoritianism. Key provisions in the Constitution are the due process clauses of the Fifth and 14th Amendments. By its very nature, the concept of due process implies a certain degree of pragmatic flexibility in order to take account of competing social needs and interests. But those competing interests should never be allowed completely to overwhelm the core notions of accuracy, dignity and procedural fairness embodied in due process, lest that constitutional protection be rendered nothing more than a hollow guarantee.

With the exception of overlapping issue consolidation, it is likely that none of the proposed aggregation devices for the resolution of mass tort claims should be deemed to be consistent with the constitutional requirement of procedural due process. If the costs of the individualized litigation model prove too great, it is up to those bodies representative of and accountable to the electorate to alter the governing substantive law in a manner that will lend itself to less individualized methods of resolution.

(1.) See generally Kenneth R. Feinberg, The Toxic Tort Litigation Crisis: Conceptual Problems and Proposed Solutions, 24 Hous. L. Rev. 155 (1987);. Spencer Williams, Mass Tort Class Actions: Going, Going, Gone? 98 F.R.D. 323 (1983). (2.) See, e.g., Snyder v. Massachusetts, 291 U.S. 97, 116 (1934), in which Justice Cardozo stated that "due process of law requires that the proceedings shall be fair." See generally Sanford Kadish, Methodology and Criteria in Due Process Adjudication--A Survey and Criticism, 66 Yale L.J. 319 (1957). (3.) Martin H. Redish & Lawrence C. Marshall, Adjudicatory Independence and the Values of Procedural Due Process, 95 Yale L.J. 455, 472 (1986 [hereinafter Redish & Marshall]. (4.) Michael J. Saks & Peter David Blanck, Justice Improved: The Unrecognized Benefits of Aggregation and Sampling in the Trial of Mass Torts, 44 Stan. L. Rev. 815, 823 (1992) [hereinafter Saks & Blanck]. (5.) See Myron J. Bromberg & Anastasia P. Slowinski, Pay or Play in Mass Torts: Alleviate Backlogs with an Expanded Court System or Joinder Methods for Mass Tort Cases, 45 Rutgers L. Rev. 371, 376 (1993). (6.) 893 F.2d 706 (5th Cir. 1990). (7.) Cimino v. Raymark Indus., 751 F.Supp. 649 (E.D. Tex. 1990). For an excellent and detailed description of the procedure, see Robert G. Bone, Statistical Adjudication: Rights, Justice and Utility in a World of Process Scarcity, 46 Vand L. Rev. 561. 563 65 (1993) [hereinafter Bone]. (8.) See, e.g., Mathews v. Eldridge, 424 U.S. 319 (1976) (taking into account risk of "erroneous" deprivation in fashioning due process test). See also Redish & Marshall, supra note 3 at 476-77. (9.) See North Georgia Finishing Inc. v. Di Chem Inc., 419 U.S. 601 (1975); Fuentes v. Shevin, 407 U.S. 67 1972). (10.) 424 U.S. 319, 335 (1976). See also Connecticut v. Doehr, 501 U.S. 1 (1991) (applying Mathews test in cases involving only private litigants). (11.) Redish & Marshall, supra note 3, at 472. (12.) Id. at 473. (13.) Id. at 472. (14.) See Jerry Mashaw, Administrative Due Process: The Quest for a Dignitary Theory, 61 B.U. L. Rev. 885 (1981); Frank Michelman, Formal and Associational Aims in Procedural Due Process, in Due Process Nomos XVIII 126 (Pennock & Chapman eds. 1977). (15.) Alexander Meiklejohn, Political Freedom 9 (1960) [hereinafter Meikeljohn.] (16.) For more detail on this theory, see Martin H. Redish, Freedom of Expression: A Critical Analysis, ch. 1 (1984). (17.) See generally Meikeljohn, supra note 15. (18.) See Redish & Marshall, supra note 3, at 483-91. (19.) See Hansberry v. Lee, 311 U.S. 32 (1940). (20.) Phillips Petroleum Corp. v. Shutts, 472 U.S. 797, 811 (1985): "[W]e hold that due process requires at a minimum that an absent plaintiff be provided with an opportunity to remove himself from the class by executing and returning an 'opt out' or 'request for exclusion' form to the court." It should be noted, however, that in Shutts the Court was considering a state class action and did not mention Rule 23(b)(1), which authorizes a mandatory class action in cases involving monetary relief The Court apparently failed to recognize the implications of its broad statement. In Brown v. Ticor Title Insurance Co., 982 F.2d 386 (9th Cir. 1992), the Ninth Circuit held that the absence of an opt out right violated due process. The Supreme Court originally granted certiorari, 114 S.Ct. 56 (1993), but then dismissed certiorari, 114 S.Ct. 1359 (1994). (21.) See, e.g., Erwin Chemerinsky, Parity Reconsidered: Defining a Role for the Federal Judiciary, 36 UCLA L. Rev. 233 (1988) (developing "litigant choice" principle as basis for allocating jurisdiction between state and federal courts). (22.) Compare Saks & Blanck, supra note 4 (arguing that sampling may actually provide more accurate decisions than individual jury trials) with Bone, supra note 7 (questioning empirical accuracy of sampling). (23.) See Bone, supra note 7, at 600 03. (24.) See, e.g., National Equip. Renta Ltd. v. Szukhent, 375 U.S. 311 (1964). (25.) See Bone, supra note 7 at 602: "When delay costs, become so large that actual recovery falls below the minimum floor required by fairness, plaintiffs no longer have a reasonable opportunity to exercise their procedural rights. And without such an opportunity, a plaintiffs' consent to sampling cannot support a voluntary waiver." (Footnote omitted.) (26.) 893 F.2d at 708, citing Erie R. Co. v. Tompkins, 304 U.S. 64 (1938). (27.) Two challenges to the use of settlement class actions in mass tort litigation are that the action fails to present a justiciable controversy required by Article III of the Constitution and that it is preempted by existing federal bankruptcy remedies. However, if both of these were true, it would be difficult to understand how federal district courts could themselves adjudicate bankruptcy disputes.

Martin H. Redish, Louis and Harriet Ancel Professor of Law and Public Policy at Northwestern University, is a recognized scholar in the fields of federal jurisdiction, civil procedure and constitutional law and is the author or coauthor of many articles and 10 books. He holds a B.A. degree from the University of Pennsylvania and a J. D. from Harvard.

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