Mass Tort As Public Law Litigation: Paradigm Misplaced

Abstract

Judge Weinstein sweepingly states that “[m]ass tort cases are akin to public litigation, involving restructuring of institutions by the courts to protect constitutional rights.” Well, close, but no cigar. While he does qualify his statement with “akin,” Judge Weinstein means to wring more out of this “akin” than this metaphor reasonably can support. Judge Weinstein would very much like mass tort litigations to be “public law” litigation because, as a 1960s-style activist judge, he could intervene assertively in mass tort cases to impose court-ordered solutions, just as he did in school desegregation and mental health cases. As he sabre-rattled in those cases, so would he have judges actively manage and resolve mass tort litigation.

However, in truth, mass tort cases are not like the institutional reform cases of the 1960s, and Judge Weinstein's assertion is an analytical finesse. First, mass tort cases do not involve constitutional rights, either great or small ones. These are, after all, personal injury torts we are talking about. Second, mass tort cases do not pit downtrodden, defenseless claimants against such big, impersonal governmental institutions as prisons, school systems, and mental health facilities. Further, there is no state action involved in any of these cases that would justify triggering Judge Weinstein's desired judicial activism.

The defendants in mass tort cases typically are corporations, both large and small. Whatever else one may think about corporate America, Judge Weinstein's metaphor tars these defendants with the same institutional brush as the local torture-chamber county jail in some 1950s backwater. We should not lose sight of the fact that mass tort litigation is, after all, merely a collection of individual tort cases brought together by time and circumstance. These cases remain individual tort cases. But for the fact of many similar cases, the essential mass tort case is nothing more or less than an injured plaintiff, represented by a personal-injury, contingency-fee lawyer, suing the product's manufacturer.

This garden variety tort is a long way from the case of the incompetent client fighting, through a public interest lawyer, an impersonal state mental health hospital for decent state treatment and institutional accommodations. Judge Weinstein's attempt to convert mass tort litigation into public law litigation is over-inclusive and not helpful. Judge Weinstein would place the mantle of “public law litigation” on any cases involving “serious political and sociological issues” having “strong psychological underpinnings” that “affect larger communities than those encompassed by the litigants before the court.”

Well, that description covers just about every case. It certainly describes all criminal law, as well as securities fraud, employment discrimination, commercial litigation, antitrust law, consumer law, immigration law, and on and on. Judge Weinstein's overarching theory of judicial power is even more disturbing than his superficial treatment of the problems of managerial judging. Again, to his credit, Judge Weinstein simply and forthrightly dismisses the notion that judges should clothe themselves with any mantle of neutrality or impartiality. Judge Weinstein believes that judges ought to be biased, feeling, involved, opinionated, and result oriented.

Philosophical questions relating to the concept of judicial power are ancient. The nature and limits of judicial power present the most compelling philosophical debate of first-year law school. By the end of first-year law school, no budding lawyer believes in the myth of neutral judging. But in this debate, Judge Weinstein sails off the end of the known universe. Judge Weinstein would transform judges into legislators, community workers, ministers, evangelists, administrative bureaucrats, and executive branch policymakers. Indeed, as Judge Weinstein discusses the various functions he believes that the good judge ought to perform in mass tort cases, one senses that Judge Weinstein's vision is indeed for the judge to be an instrument of the Lord.

Judge Weinstein's good judge not only knows what constitutes the communitarian good, but armed with this knowledge, the good judge induces lawyers, claimants, expert witnesses, court-appointed adjuncts, and the public toward a transcendental resolution of mass tort cases. In his interview with The New Yorker, Judge Weinstein disclaimed that he is such an instrument. But for those who have encountered Judge Weinstein professionally, he often seems like an instrument of the Lord. And in his article on professional ethics in mass tort cases, he has certainly given the law like an instrument of the Lord. Judge Weinstein has written a comprehensive article on the ethical problems in mass tort cases.

He has staked out the high moral ground for professional responsibility in complex litigation, a position that is intrinsically difficult to challenge because of its superior attitude and vantage point. Yet despite his admirable stance, Judge Weinstein fails to provide adequate factual support for his choices and claims. Moreover, he permits conclusory statements to shoulder the yeoman's burden of convincing evidence. Thus, whether one agrees with Judge Weinstein will depend on one's philosophical predilections and one's acceptance of his assumptions. As for me, I prefer judges in their robes, and on the bench.