Procedural Due Process and Aggregation Devices in Mass Tort Litigation

By Redish, Martin H. | Defense Counsel Journal, January 1996 | Go to article overview

Procedural Due Process and Aggregation Devices in Mass Tort Litigation


Redish, Martin H., Defense Counsel Journal


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.

AGGREGATION DEVICES

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. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • A full archive of books and articles related to this one
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Procedural Due Process and Aggregation Devices in Mass Tort Litigation
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

    Already a member? Log in now.