The Dangerous Allure of the Issue Class Action

Abstract

In the complex and chaotic world of mass torts, a class action that aggregates the claims of aggrieved individuals against a common defendant would seem not only a prudent solution, but possibly even a necessary one. The class device holds out the promise of resolving issues "common" to all plaintiffs in a single trial, preventing wasteful and repetitive litigation of similar issues, and the possibility of inconsistent results. And collective adjudication allows plaintiffs to pool resources against better-financed defendants. Despite these potential benefits and the admiration of a host of commentators, however, the class action has thus far failed to gain significant judicial acceptance as a fair and efficient mechanism for resolving mass tort claims. Indeed, the Supreme Court in recent years struck down two wide-reaching mass tort class actions in such sweeping terms that many observers predicted the death of the mass tort class action. [...]