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Repeat Players In Multidistrict Litigation: The Social Network, Elizabeth Chamblee Burch, Margaret S. Williams
Repeat Players In Multidistrict Litigation: The Social Network, Elizabeth Chamblee Burch, Margaret S. Williams
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As class certification wanes, plaintiffs’ lawyers resolve hundreds of thousands of individual lawsuits through aggregate settlements in multidistrict litigation. But without class actions, formal rules are scarce and judges rarely scrutinize the private agreements that result. Meanwhile, the same principal-agent concerns that plagued class-action attorneys linger. These circumstances are ripe for exploitation: few rules, little oversight, multi-million dollar common-benefit fees, and a push for settlement can tempt a cadre of repeat players to fill in the gaps in ways that further their own self-interest.
Although multidistrict litigation now comprises 36 percent of the entire federal civil caseload, legal scholars have …
Disaggregating, Elizabeth Chamblee Burch
Disaggregating, Elizabeth Chamblee Burch
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Commonality is a defining characteristic of mass-tort litigation. But mass-tort claimants typically do not share enough in common to warrant class certification. That is, commonality does not predominate. Yet, without class certification, judges cannot conclude these cases as a unit absent a private settlement.
This paradox prompts two questions. First, what level of commonality justifies aggregating mass torts, shorn of Rule 23’s procedural protections? And, second, should the federal judicial system continue to centralize claims with nominal commonality when judges typically cannot resolve them collectively absent a private settlement? This Article’s title suggests one answer: if minimal commonality continues to …