The American Law Institute's Complex Litigation Project, approved at the May 1993 Annual Meeting, represents nothing so much as several fine movements of an otherwise unfinished symphony. Although the membership endorsed this final draft, it prematurely laid the Project to rest. Had the eminent composers been permitted to continue, Congress and the judicial system might have benefitted from a more polished, complete work. Instead, as the Reporters previewed each successive movement, it became apparent that the Reporters, as conductors, were having difficulty getting their distinguished orchestra to play their themes harmoniously.
Similar to the Institute's 1969 Study of the Division of Jurisdiction Between State and Federal Courts, the Complex Litigation Project seems destined to represent a massive, engaging intellectual exercise rather than a pragmatic blueprint that Congress will enact for the conduct of complex litigation. Indeed, the ALI's 1969 study now seems prescient in its recommendation of a minimal diversity requirement for complex cases, a jurisdictional recommendation that appeared in early drafts of the Complex Litigation Project but that subsequently disappeared. Moreover, since 1987 at least, Congress has been marching to its own drummer with regard to enacting procedural reforms concerning complex litigation.
For the past six years, each new legislative session has witnessed the reintroduction of yet another revised version of the Multiparty, Multiforum Jurisdiction Act. While the House Judiciary Committee has not been oblivious to the American Law Institute's parallel efforts, the Judiciary Committee's legislative proposals have reflected more the handiwork of legislative lobbying and compromise than the work product of platonic proceduralists. Without being cynical about either the American Law Institute or Congress, it seems rather dubious that with the Complex Litigation Project now completed, Congress will actually adopt the ALI's Proposed Final Draft.
That the Complex Litigation Project's recommendations probably will not become law should not trouble academic proceduralists and should comfort those practicing lawyers who dislike many of the Project's recommendations. As with many ALI enterprises, the development of the Reporters' proposals served to heighten the different perspectives of the academic and practicing legal communities.7 Throughout, the academicians approached the task of complex litigation reform with the mindset of the physics professor confronted with a cosmic problem. The academicians asked: “If I had to construct a set of ideal rules for the conduct of complex mass tort cases, what would they look like?”
To answer their question, the academicians proceeded from a vantage of purist zeal to create platonic rules. The ALI's practicing members, however, brought to bear a pragmatic litigation experience tempered by the perceived interests of their clients. The predictable result of this clash of sensibilities is a mediated final draft that compromises or evades sticky points (state inter-system consolidation of cases), offers amalgamated something-for-everyone solutions (choice-of-law rules), or simply omits difficult problems (jurisdiction).
Much has already been written about various proposals in the multiple drafts of the Complex Litigation Project, and the purpose of this essay is not to revisit the debates surrounding the final formulations of the Project's recommendations. Rather, this essay explores the notion that the Complex Litigation Project is indeed an unfinished symphony that should be evaluated as much for what it does not say as for what it does say. Efforts such as the Complex Litigation Project defy sweeping judgments concerning their success or failure.
Obviously, if Congress or various states enact the Project's recommendations in whole or in part, and if these measures facilitate the conduct of complex mass tort cases, then the Project properly may be deemed a success. But this assessment is a long term prospect. From another perspective, the Complex Litigation Project was a smashing success as a pure academic exercise, having provided hearty grist for the academic scholarship and debate mills. The project was challenging, irksome, entertaining, and fun. Many in the academic community, no doubt, are sorry to see it go. Yet from still another perspective, the Complex Litigation Project may be deemed a failure of will and imagination.
At the outset the Institute and the Reporters deliberately limited the scope of the Project, and as a result, the Complex Litigation Project in the end simply failed to address the myriad problems that collectively characterize complex mass tort cases. The Reporters' and the Project's obsessive focus on the problems of jurisdiction, transfer, and applicable law reduced the phenomenon of complex litigation to a caricature of the actually-litigated mass tort case. Ultimately, the final draft fails to deal in a holistic fashion with the interrelated issues of complex cases. This essay documents what the Reporters left out by design, inadvertence, or other unknowable reasons.
Although the Project began in 1986 and the Reporters issued their first Preliminary Study in 1987, for many observers the Complex Litigation Project seems to have been prematurely aborted in 1993 after seven years of work. Unexpectedly, the Complex Litigation Project ended; the ALI membership was informed of this Project interruptus. The Project's end left many of those unprepared for its unforeseeable demise wondering when the Reporters were going to deal with certain troubling issues. For some, the Project's abrupt termination left a sense of incompleteness: of music not written, of movements undone.
The pieces that were left out of the Complex Litigation Project are as important as the ones there, primarily because the Project does not solve the many problems of complex litigation, let alone mass tort litigation. The Project really does only two things: it revamps the old multidistrict litigation statute (tinkers with, is perhaps a better concept) and offers an elaborate choice-of-law scheme. But that is all it does. The Reporters set out to compose The Rite of Spring, but then settled on scoring the flittings of two wood nymphs. We certainly are not the worse for this, but it is hard to say that we are the better.
Linda S. Mullenix, Unfinished Symphony: The Complex Litigation Project Rests, 54 Louisiana Law Review 977 (1994).