For whatever reasons, it is indeed the case that conflicts scholars have been slow to recognize the significance of the complex choice-of-law problems present in mass-tort litigation. Judges and attorneys, mired in the real world of practical lawyering, have been the first to flag problematic choice-of-law issues dogging their mass-tort cases. And with some naïveté, perhaps, civil procedure professors have been the vanguard academicians to recognize the complex choice-of-law issues generated by mass-tort cases. Proceduralists, at least, early understood that finding a solution to the choice-of-law dilemma was intricately related to finding a plausible aggregate mass-tort procedure. Judges, lawyers, legislators, and academicians already have written massive amounts concerning the resolution of the applicable law problem in mass-tort litigation. Indeed, it hardly seems possible that anything new can be added either to describe the problem or to resolve this debate.
As is true generally in conflicts scholarship, the lists of choice-influencing factors to determine applicable law in consolidated mass-tort cases grows longer as each conflicts scholar weighs in with his or her own particular conflicts predilections. Furthermore, such is the nature of the task that even perennial optimists are skeptical whether law reformers will be able to achieve a consensus solution to this choice-of-law problem in the near future. Someone's predilections will prevail, however, and it is a fairly certain bet that the scheme for resolving choice-of-law questions in mass tort will resemble a federalized version of the Restatement (Second) of Conflict of Laws. While federal courts bumble along solving choice-of-law issues in mass-tort cases in the old-fashioned way, Congress has experienced multiple false starts in attempting to enact a multiparty, multiforum bill, and the American Bar Association's proposals for mass-tort legislation ignominiously died in the back rooms and public forums of the ABA House of Delegates. The remaining institutional law-reform group still actively grappling with the mass-tort choice-of-law problem is the American Law Institute in its Complex Litigation Project. The Complex Litigation Project proposals relating to choice of law have come to occupy the mass-tort field almost by default.
This Article therefore primarily examines these ALI proposals and critically assesses the wisdom of adopting a modified, federalized Restatement (Second) approach to resolving the choice-of-law problem in mass-tort litigation. The basic thesis is that in proposing to federalize various choice-of-law determinations along Restatement principles, the reformers are recycling tired conflicts principles and adapting them, Rube Goldberg fashion, to a bigger tort model. In the final analysis, using the collection of Restatement rules to determine applicable law in mass-tort litigation will not work for the truly dispersed mass-tort case. Like their colleagues in Congress, the ALI Reporters have, at best, solved the choice-of-law problem for the single-site accident, but have not really supplied a workable choice-of-law scheme for a nationwide or regional calamity. In the larger context of remedial reform, the American Law Institute's proposals relating to choice of law are but another frustrating illustration of the basic refusal of law-reform groups to grapple with the underlying substantive law problem of mass tort.
In this sense, the story of the choice-of-law proposals is also the story of the failure of law reform writ large and writ small. The Institute and other institutional players have consistently offered federal solutions for all procedural aspects of mass-tort litigation but have resolutely eschewed proposing a substantive federal tort statute that would address the underlying substantive legal issues. Characteristically, the American Law Institute Reporters offer their proposals to federalize choice of law as a federal solution to a federal problem. This proposed federalization of conflicts law is accompanied by the full flush of constitutional rhetoric that has supported each new piece of this Project. And although every law reform group that has considered the problems of mass-tort litigation has characterized this litigation as constituting a set of legal problems of national scope, the reformers uniformly have stopped short of federalizing substantive tort law.
Thus, to date, the reformers have offered a piecemeal approach to mass-tort litigation that would federalize jurisdiction and consolidation procedure, federalize various coercive devices to collect individual cases in one forum and enjoin litigation elsewhere, and federalize applicable law. In the larger sense, then, the ALI Complex Litigation Project as a whole reflects a failure of political will. On a smaller scale, with regard to its various proposals for procedural reform, the Project also reflects a failure of creative thinking in its general approach of harnessing existing, often problematic rules to complex mass-tort litigation. And this is nowhere more evident than in the Project's provisions for determining applicable law.
In federalizing applicable-law rules, the Institute's proposals are troubling because they subvert basic Erie doctrine in garden-variety diversity cases, blithely endorse vertical forum shopping, and inadequately justify a federalized regime in mass-tort cases. It is not enough to simply keep repeating that mass-tort cases are bigger and more complicated and therefore justify overriding all pre-existing rules and doctrines in the interest of sound judicial administration. While stating that the objective of the choice-of-law proposals is to curb judicial discretion, in reality the proposed multifactor approaches encourage creative judicial deductive reasoning from the judge's choice of applicable law to the factors supporting that choice. And if it is true that a purpose of multifactor choice-of-law schemes is to reduce unbridled judicial discretion, then perhaps what we ought to do, if we choose a modified Restatement route, is to take the judge out of the decisional process altogether and have applicable law determined by computer.
If ever an area of law was susceptible to decision-tree analysis, then surely it would be multifactor choice-of-law rules. Perhaps the most disturbing aspect of the ALI choice-of-law proposals is that they will not meaningfully assist in determining law in truly dispersed mass-tort litigation. For the hard cases, the reformers have proposed virtually useless rules. Although the provisions and commentary sound perfectly plausible and reasoned (albeit reflecting the proposers' own conflicts preferences), the proposed rules will not work for truly massive tort cases. Furthermore, when considering actual or hypothesized dispersed mass-tort scenarios, the Reporters' typical solution is to recommend subclassing claimants or remanding cases for a choice-of-law determination. This punting approach to the really complicated conflicts questions again reflects a failure of will and imagination.
Linda S. Mullenix, Federalizing Choice of Law in Mass Tort Litigation, 70 Texas Law Review 1623 (1992).