Aggregation, Settlement, and Dismay

Richard Marcus and Jack Coffee argue that federal judges are relying on the class action rule (Federal Rule of Civil Procedure 23) to revamp both substance and procedure. Both papers represent attempts to link the efforts of lawyers and judges across an array of cases and to provide a coherent picture of the emerging new rules and doctrine, both substantive and procedural. Coffee and Marcus strive to place a series of federal mass tort class action litigations in a broader context, in an effort to understand a phenomenon rather than a particular case. As Marcus explains, while Congress has not (as of this writing) enacted any of the various legislative proposals for tort reform, federal judges have functionally undertaken tort reform through their work under Rule 23. That is, judges have approved (and, to varying extents, designed) class action settlements that eliminate punitive damages; created priorities of rights by staggering the processing of claims and categorizing the values of claims; recognized to some extent a tort of fear of future injury; altered standards of proof of causation and injury; and capped payments. Professor Coffee would add a few other items to this list of federal judicial innovations—that judges have imposed new requirements on eligibility for compensation, excluded lesser injuries from compensation, and sanctioned the queuing of claimants so that only a certain number of claims are paid in a given year