Academic journal article Duke Journal of Comparative & International Law

Compensating Large Numbers of People for Inflicted Harms

Academic journal article Duke Journal of Comparative & International Law

Compensating Large Numbers of People for Inflicted Harms

Article excerpt

This conference was appropriately set at Geneva, just a few miles from the great collider at CERN where cosmologists and physicists are testing the theory that ours is only one of many side-by-side universes with far more than three dimensions, operating particularly on gravitons in the company of quarks.(1) Perhaps in civil procedure too, we live in separate universes--but, we can visit with each other and perhaps find commonalities.

The message is, "Open up your minds, almost anything is possible." I will emphasize the universe I know best, that of the United States.

Acts by individuals and entities sometimes have adverse impacts on many people. Globalization and changes in technology increase hazards and a growing nucleus of potential litigants.

Shall the resulting damages be compensated by those who create the harm? How? Should large groups of injured be treated differently from those persons hurt in individual occurrences?

What substantive laws should apply? Can one substantive law control cases arising in many states and nations? On what theory can a useful conflict of laws rule be developed for group litigations?

What courts or administrative bodies should have competence? Plaintiffs usually have a wide choice of venue. Preemption and other considerations may reduce those options. Should they? How?

Which prospective defendants should be subject to jurisdiction? The laws of personal jurisdiction vary widely. Many countries would reject, for example, United States "tag jurisdiction." Should treaties (now developing) or rules permit one tribunal to bind all possible parties(2)--plaintiff and defendant, those whose injuries are already manifest and those who will learn of them in the future? What should those personal jurisdiction rules be?

Are there procedures capable of handling such large aggregations of claims and parties fairly and speedily? What are they?

Each of our countries gives different answers to these questions. Even within the United States more than fifty sovereignties, federal and state, result in almost unimaginable complexities in mass adjudications.

We have created practices through class actions, consolidations, transfers of cases, cooperation among courts, mass merchandising of lawyers' services so one law firm may control and dispose of more than ten thousand cases at a time, and settlement techniques that may prove of some interest at this conference. Whether any part of our exotic practice can or should take root elsewhere is not apparent.

Put aside for the moment the procedural problems in juridically finalizing a settlement or trial in U.S. courts of a school desegregation case, the "slave laborers" cases,(3) the human rights cases of the Philippines,(4) or the holocaust victims' assets cases.(5) Turn to a, by comparison, banal example of future litigations.

Assume a popular unregulated herbal supplement is being manufactured by companies in many states and countries. Some produce and sell only locally. Others operate nationally and internationally. Distributors use worldwide internet, television, and other forms of merchandising. Some foreign companies (and their holding companies) sell in very small quantities in each of many states in the United States. Purchases can be made online directly from the manufacturer and in almost any drug store. Brand names are used, but "The Product" is generic. Telephone, internet, and credit card orders utilize satellites, and electronic bank transfers settle accounts, mainly through New York, London, Zurich, and Tokyo. Suddenly, there are indications that the product has serious adverse effects.

An action is brought on behalf of plaintiffs from all over the world (with lots more to come) against distributors and manufacturers in a New York Federal District Court. Were this, as I assume, an action not based on federal substantive law, there would be no diversity jurisdiction for named plaintiffs from some of the states; they could not join the action except as non-named parties in a class action. …

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