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Mass Torts and Due Process

PDF · Sergio J. Campos · May-31-2012 · 65 Vand. L. Rev. 1059 (2012)

Almost all courts and scholars disfavor the use of class actions in mass tort litigation because class actions infringe on each plaintiff’s control, or autonomy, over the tort claim. The Supreme Court, in fact, has strongly suggested that protecting litigant autonomy is a requirement of due process and has done so in recent decisions concerning the class action, arbitration, preclusion, and the Erie doctrine. In this Article, I argue that protecting litigant autonomy in the mass tort context is self-defeating, and, in the process, I reexamine basic tenets of the law of procedural due process. Relying on recent property theory, I first show that protecting litigant autonomy in mass tort litigation causes collective action problems which undermine the deterrent effect of the litigation. Thus, protecting a plaintiff’s autonomy over the claim leads to the very mass torts that the claim seeks to prevent and remedy. Counterintuitively, this tragedy can be avoided by taking away each plaintiff’s autonomy over the claim, such as through a mandatory class action. I then use the self-defeating nature of litigant autonomy in mass tort litigation to rethink the law of procedural due process. The result is a revision of the law of procedural due process that takes each plaintiff’s individual interest in deterrence into account and impartially balances competing interests. I conclude that the law of procedural due process should end its preoccupation with the claim, and, in particular, a plaintiff’s control over it. Instead, the law of procedural due process should take a context-dependent approach that takes into account the enforcement objectives of tort law and analogous liability rules.



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