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Why me? The role of private trustees in complex claims resolution.

 A. Mass Tort Litigation as Public Law Litigation
 B. The Hybridization of Claims Resolution
 1. The need for private individuals in complex claims resolution
 2. The politicization of claims resolution
 3. Nonjudicial adjudication can promote fairness
 A. The Degree of Discretion
 B. The Repeat Player Issue
 C. Solving the Repeat Player Problem
 1. Selection of trustees
 2. Accountability
 D. The Dalkon Shield Claimants Trust: Paradigm Lost Revisited--A


When reading about the Iraq war and its aftermath, I wondered, "Who is Paul Bremer?" Nobody elected him. Few people had heard of him before he became the administrator of the Coalition Provisional Government of Iraq. (1) When thinking about my role in this Symposium, it occurred to me that my position as a trustee of the Dalkon Shield Claimants Trust ("DS Trust") (2) was in some ways akin to that of Paul Bremer. Few people had heard of me. Nobody had elected me, either. Although the DS Trust did not have as high a profile as the Iraq war and its aftermath, the person on the street may well have wondered why a relatively unknown law professor was given the job of developing standards for distributing over $2 billion to hundreds of thousands of claimants. Similarly, although better known, Kenneth Feinberg, a private lawyer who served as a trustee of the DS Trust, more recently was appointed by the Attorney General of the United States to a high-profile post to administer the September 11th Victims Compensation Fund (VCF) created to compensate the victims of the attacks on the World Trade Center and the Pentagon. (3)

This Article explores whether private persons, as opposed to a judge or, perhaps, another governmental official, should have the authority to exercise a high degree of discretion in developing standards for compensation and determining compensation awards for claimants. It is important to look directly at this issue because the question whether administrative trusts are an appropriate alternative to litigation cannot be answered without a discussion about the private persons who develop the compensation standards and administer an administrative trust and how they should be selected.

The role of private persons in the adjudication process has been the subject of some critical academic commentary (4) and has been critiqued implicitly in the literature casting concerns about the alternative dispute resolution (ADR) movement. (5) However, it is unrealistic to expect judges to resolve the claim of each plaintiff in complex cases, particularly mass tort cases. Thus, the relevant concern is whether processes can be put into place to ensure that when private decisionmakers act, they promote and protect the various goals ordinarily served by litigation before a judge.

Part I of this Article provides a brief history of the "hybridization of complex claims resolution." This discussion shows that the use of private persons to control the process of determining compensation levels is a natural outgrowth of the development of the "public law" model of litigation and the ensuing "privatization" of the dispute resolution process. What has emerged is a hybrid system in which mass claims litigation that is commenced in courts results in an administrative claims resolution facility with standards for determining compensation developed by and administered by private individuals.

The Article further raises the possibility that the politicization of state and federal judiciaries creates a climate in which private decisionmakers are perhaps in at least no worse a position than judges to provide impartial, disinterested justice. Next, the Article rejects the argument that judicial adjudication is necessarily the superior means for resolving disputes. Rather, it suggests that administrative trusts run by private persons can provide a laboratory for innovative dispute resolution processes, the evolution of the law, and, ultimately, the fair administration of justice.

Given that most trust funds that have marked the legal landscape over the last twenty years have emerged out of litigation of some kind, or the expectation of litigation, (6) Part II of the Article discusses who from the private realm should be chosen to run administrative trusts. It examines the degree of discretion that the trustees ought to enjoy and the degree of judicial supervision that ought to be required. After making a case for the appointment of independent trustees, the Article raises the repeat player problem: a relatively small group of private individuals serves as the designers or administrators of the administrative trusts that have emerged in response to complex litigation, such as in mass tort cases.

The Article suggests that the arguments for using private persons as the proxy for the judicial system begin to lose force when the same private individuals are chosen by another set of repeat players--the judges and lawyers that appear so regularly in complex litigation. The Article concludes that more appropriate selection processes can help solve the issues created by the use of repeat players. It borrows from the literature regarding judicial selection methods to propose innovative approaches to the selection of a broader range of private persons. The introduction of some competition in the selection of trustees should result in administrative claims resolution facilities that are an appropriate substitute for litigation. The processes such private persons develop can result in efficiency, impartiality, and appropriate levels of innovation.


The traditional paradigm for civil dispute resolution envisions a judge who makes legal rulings and a jury that determines the facts after a trial. Trials have been characterized as "the central institution of the law as we know it" (7) and as "one of our great cultural achievements." (8) However, as Gillian Hadfield has shown, the percentage of civil cases resolved by either a bench or jury trial has declined from 11.5% in 1962 to 1.8% in 2002. (9) Not coincidentally, with increasing pace during the last several decades, civil dispute resolution has moved from the "private law" model of adjudication to the "public law" model. (10) At the same time, private persons have become an integral part of the claims resolution process, especially in complex litigation such as mass tort litigation. These developments may be described as the "hybridization of complex claims resolution." By hybridization, I mean that the resolution of a complex litigation requires the participation of the judiciary, government officials, the parties to the litigation, and private individuals not only during the litigation and the settlement process, but in the claims distribution process as well.

This Part discusses the evolution of these developments. First, it shows how mass tort and similar complex claims resolution became a species of public law litigation and how complex claims resolution came to be characterized by the participation of not only public, but also private actors: not simply as parties and their attorneys, but also as adjuncts of the judiciary, in setting standards and making awards. Next, it examines the political dynamics that undermine the state and federal judiciaries, which lead to the claim that such private adjuncts or adjudicators may be capable of being at least as impartial as judges. This Part also suggests that the use of private persons can lead to the development of innovative approaches to dispute resolution and help advance the evolution of law. Thus, the question is not whether private persons should play a discretionary role in resolving claims, but who those persons should be and how they should be selected.

A. Mass Tort Litigation as Public Law Litigation

In his famous (11) article, The Role of the Judge in Public Law Litigation, (12) Abram Chayes examined the emergence of institutional litigation and the changes in the makeup of such litigation, such as school desegregation cases. He described the "new model of civil litigation" (13) that had emerged, and noted various characteristics of this new model: (1) "the party structure is sprawling and amorphous, subject to change over the course of the litigation"; (14) (2) "[t]he judge is the dominant figure in organizing and guiding the case, and he draws for support not only on the parties and their counsel, but on a wide range of outsiders--masters, experts, and oversight personnel"; (15) and (3) the judge has "has increasingly become the creator and manager of complex forms of ongoing relief, which have widespread effects on persons not before the court and require the judge's continuing involvement in administration and implementation." (16)

Almost twenty years later, Judge Jack B. Weinstein noted that Chayes's description of modern public law litigation applied to private mass tort litigation as well. (17) He explained the similarities between mass tort cases and classic public law institutional litigation. Both "implicate serious political and sociological issues." (18) Mass tort cases and public law litigation also both have "strong psychological underpinnings" and both "affect larger communities than those encompassed by the litigants before the court." (19) He further explained that mass tort cases, like public law cases, raise important issues about modern society. (20) He noted that there often arises in mass tort cases "a near paranoid terror of an unknown 'them' in the large corporation" and a sense of "extreme anxiety" like that which arises in public law cases involving government agencies. (21) These characteristics in turn require courts to take a more active role in managing the litigation. It also requires courts and attorneys to exercise a higher degree of sensitivity so that irrational disagreements do not undermine the resolution of the litigation. (22)

Linda Mullenix has criticized Judge Weinstein's vision of mass tort litigation as public law litigation. (23) She argues that "Judge Weinstein's assertion is an analytical finesse" (24) because mass tort cases generally do not involve constitutional rights. (25) Rather, she continues, mass tort litigation is essentially a collection of individual personal injury cases. Accordingly, she argues that the public law paradigm is inapplicable because "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." (26)

Literally, Mullenix is correct. However, in 1997 the Supreme Court decided Amchem Products, Inc. v. Windsor, (27) in which it vacated the class action settlement of the asbestos litigation, and in 2003 it split 4-4 in Dow Chemical Co. v. Stephenson, (28) which allowed veterans who otherwise would have been precluded from seeking compensation by the class action settlement that created the by-then-defunct Agent Orange settlement facility to sue Dow Chemical for injuries allegedly caused by their exposure to Agent Orange. Both cases were decided on due process grounds. Thus, issues of constitutional law seem to loom larger than ever in the mass tort context. Moreover, the essence of Judge Weinstein's argument as to why mass tort cases should be analogized to public law litigation is that such litigation has such a huge impact on the public at large. (29)

Unquestionably, mass tort cases have had a dramatic impact on the judicial system and society over the last two decades. (30) Mass tort litigation is extraordinarily expensive. (31) As a particular litigation becomes more protracted, shareholder value may be diluted and jobs may be lost. (32) Since the Supreme Court's decisions in Amchem (33) and Ortiz v. Fireboard Corp. (34) made it more difficult for companies seeking global peace in resolving a mass tort to use Rule 23 settlement class actions, (35) more asbestos defendants have sought to use the bankruptcy laws to obtain such peace, and more companies involved in various mass torts may be likely to do so in the future. (36) The traditional model of litigation often overly rewards some plaintiffs, but may leave others with little or nothing as corporate defendants' assets are depleted through the litigation process. (37)

Rather than compare the harms suffered by victims of discrimination in a traditional public law case or characterize them as downtrodden as compared to victims of a defective product or drug that causes serious injury, it is more apt to compare the scope of harm in terms of the large numbers of persons affected by the same or similar conduct. Indeed, under the corporate law of most states, the boards of directors of public companies are required to maximize profits for the benefit of shareholders. Thus, they make decisions that generally do not necessarily inure to the benefit of the consumers of their products. The result can be a mass tort such as those we have seen and see now in the case of the painkiller Vioxx. Just as traditional public law cases are seen as a deterrent to governmental abuses, mass tort cases raise a similar need to constrain the single-minded approach to profit maximization. (38) In that sense, mass tort litigation unquestionably takes on the attributes of traditional public law litigation. All such litigation is complex litigation and, as such, invites nontraditional methods of resolution. (39)

Indeed, over the last twenty years, judges aggressively have used numerous procedural devices to steer mass tort cases to resolution without trial. Federal judges are armed with powerful aggregation tools to assist them in resolving complex cases, such as the multidistrict litigation statute, which allows the transfer of related cases to one district court for pretrial purposes, (40) and Federal Rule of Civil Procedure 23, which permits class action litigation. (41) More dramatically, the Class Action Fairness Act of 2005 will allow most state-claim-based class actions filed in state court to be removed to federal court. (42)

In the bankruptcy context, 28 U.S.C. [section] 1334, which vests the federal district courts with subject matter jurisdiction over cases "related to" a bankruptcy case, may be used to support removal of state cases involving the debtor and third parties to federal court, and, ultimately, their aggregation there. (43) In addition to these aggregation rules, courts invoke the court-made preclusion doctrine to bar relitigation of the same issues, (44) institute docket control mechanisms, (45) create case management consortia, (46) and issue injunctions against state court litigation that raises the same claims as those in federal court. (47) It is not a well-kept secret that judges use these tools to drive the parties to settlements. (48) In the aftermath of settlement, as a general matter, an administrative fund of some kind is established to pay all claimants, with the fund generally administered by a private individual rather than a judge.

Although Amchem makes it more difficult to resolve mass tort claims in class action settlements, federal and state courts still approve such settlements. (49) Indeed, many scholars have criticized the aggressive use of judicially managed, aggregated settlements of mass torts because such resolution impairs individual autonomy and the role of the judiciary. (50) Nonetheless, it seems clear that the aggregated settlements of mass tort litigation are here to stay, one way or the other, unless tort reform succeeds in eliminating the plaintiffs' mass tort bar. Just two recent examples highlight this trend: the use of [section] 524(g) prepackaged plans of reorganization that lead to the establishment of trust funds administered by private individuals to resolve asbestos liability, which have assumed paramount importance in the last few years; (51) and the establishment of the VCF. (52)

B. The Hybridization of Claims Resolution

Based on my experience as chairperson of the DS Trust, I have written that aggregated settlements of mass tort cases are the preferred alternative to traditional one-on-one litigation. (53) But I have not discussed the propriety of my role or that of others similarly situated--such as Ken Feinberg, as Special Master of the VCF, or other trust fund administrators--as a private individual rather than a governmental official, in actually resolving claims. Although one can argue that such private persons have become governmental actors--the administrators of an ad hoc administrative agency--by the simple act of appointment, the concern remains that heretofore private individuals have assumed an ad hoc judicial mantle by such appointment.

When a settlement provides a funding vehicle that essentially dictates the terms of each settlement, such that the fund administrator exercises little to no discretion on the settlement amount, perhaps the use of private individuals to serve as trustees raises little concern, although such individuals are likely to command a higher fee for this work than would clerks of the court, magistrate judges, or other governmental officials. (54) However, when the parties to the settlement have relied on their own private experts to develop detailed rules for paying claims, or when the settlement terms, instead, provide a high degree of discretion to the fund administrator, as the A.H. Robins Plan of Reorganization did in connection with the DS Trust (55) and as the Act establishing the VCF did, one might wonder why private persons ought to be charged with such a task.

Peter Schuck has described this privatization of mass tort resolution:
 The same elite group of plaintiffs' lawyers turns up on the
 management committees of one mass tort litigation after another.
 Much the same is true on the defendants' side. This "repeat player"
 phenomenon creates a high degree of informal coordination,
 continuity, and learning across different mass torts. It also causes
 litigators to devote much effort to building and maintaining their
 reputations and credibility. This further facilitates the
 lawyerization of mass tort risks. (56)

Thus, mass tort litigation has become a "private system" in terms of its inception, and its resolution has become increasingly private as well. Even Mullenix, who criticized Judge Weinstein for applying the public law paradigm to mass tort litigation, has written that mass tort litigation has become "private aggregate claims resolution." (57) Plaintiffs' lawyers sue in the state and federal courts in which they hope to obtain the maximum judicially enforceable remedies possible under the law from a jury. Once hundreds of suits are filed alleging harm due to a particular product, or once there is a threat that hundreds or thousands of cases will be filed, however, courts tend to routinely consolidate the cases using the federal and state mechanisms discussed above. (58) Lead counsel for plaintiffs and defendants soon begin to sit down to work with the court on the "disposition" of the litigation. (59) This almost invariably leads to the creation of a fund administered by a private person.

It is not as if there is a lack of precedent for using private individuals to assist judges in resolving complex litigation. Looking at the history of complex litigation over the last decades, it is clear that we already have experienced the hybridization of complex claims resolution. The resolution of complex litigation requires the participation of the judiciary, government officials, (60) the parties to the litigation, and private individuals during the litigation, the settlement process, and the claims distribution process. Magistrate judges frequently are given the task of managing discovery. (61) Special masters are typically appointed under Federal Rule of Civil Procedure 53, (62) and experts are appointed under Federal Rule of Evidence 70663 to assist the judge in various matters (64) during all phases of litigation. (65) Given the criticisms of pushing settlement over litigation, (66) "ad hoc" procedure, (67) and managerial judging, (68) it is not surprising that the privatization of the administration of justice has been criticized as well.

There are two major arguments against these developments. First, and perhaps most importantly, there is an accountability problem. For example, referring to managerial judging and the ADR movement, Resnik has argued, "Especially troubling for me is the fact that these alternatives empower decisionmakers without providing sufficient justification of why they deserve expanded authority." (69) More recently, Penelope Pether has written about various aspects of the "scandal of private judging" in the U.S. courts. (70) Perhaps most importantly, the settlement of litigation may deprive the world at large of important precedent that may otherwise emerge from a fully judicial resolution of litigation. (71)

These arguments stand as a sobering and powerful critique of the thoughtless use of private actors as important players in determining the rules for the resolution of claims. Thus, it is important to look at whether allowing private persons to play such critical roles as trustees in complex litigation is appropriate. The term "trustee" will be used to describe a private person who is appointed to administer a trust, and who is provided a high degree of discretion in developing compensation standards and in implementing them. "Trustee" will also be used to describe the various experts employed by the courts and the parties to develop the compensation standards that will be used by a trust that is administered by other trustees who have relatively little discretion.

The sections below discuss a number of reasons that suggest that the use of trustees is necessary and appropriate. As a bonus, the use of trustees can lead to improvements in the administration of justice, if as discussed in Part II, proper controls on the selection of such trustees are in place.

1. The need for private individuals in complex claims resolution

As discussed previously, private individuals are already playing important roles assisting courts during the course of a complex litigation. Using private trustees, whether as the designers of an administrative system or in implementing a settlement, is a necessary evolution of this development.
 [T]here are things that work in practice even though they do not
 work in theory. One thing that works more or less in practice is the
 process of resolving fundamental issues of right and wrong on a
 day-to-day basis without a satisfactory theoretical basis for doing
 so. The courts perform the task, often being troubled and confused,
 but they get the job done somehow. (72)

Geoffrey Hazard is, of course, correct that for the most part, on a day-today basis, judges do an amazing job of getting the job done. In the world of complex litigation, perhaps especially in mass tort litigation, it is difficult, if not impossible, for any one judge to get the job done. Even Judge Weinstein, who has overseen the resolution of numerous complex and mass tort cases, has written that judges need help. (73) Magistrate judges can assist, but in complex cases, especially mass tort cases, judges have increasingly used Federal Rule of Civil Procedure 53 to appoint special masters to assist them in various ways. (74) In fact, Rule 53 was amended in 2003 in recognition of "the changing practices in using masters." (75)

Although the touchstone for appointment remains "exceptional circumstances" (76) and appointment should be the "exception not the rule," (77) amended Rule 53(a)(1)(C) provides flexibility to courts to appoint a master to "address pretrial and post-trial matters that cannot be addressed effectively and timely by an available district judge or magistrate judge of the district." Such a condition can easily be said to be met in most complex litigation, and the parties to such litigation generally either consent to or acquiesce in the appointment of masters for a wide variety of purposes, from discovery management to decree monitoring or settlement administration. (78) A Federal Judicial Center report cited by the Advisory Committee noted that once a judge faces "a mass of complicated activity at the discovery or posttrial stage of a case" and believes that additional resources are necessary, a "litigation dynamic" is created that leads either to party consent or acquiescence in the appointment of a special master. (79)

Thus, there already is a high degree of private adjudication. As William Rubenstein and others have shown, we already have moved beyond the traditional models of adjudication to a "transactional model." (80) Despite ethical rules designed to curb such conduct, plaintiffs' lawyers themselves often will engage in group settlements and then divvy the proceeds of such settlements among their numerous clients. (81) The reality of any multidistrict litigation is party-driven negotiations aimed at achieving a judicially acceptable resolution of an otherwise intractable litigation that generally leads to the establishment of an administrative fund designed by and run by private persons. (82) On many levels, therefore, our judicial system has become a hybridization of public and private dispute resolution. (83)

2. The politicization of claims resolution

a. The politicization of judges

It does seem anomalous to have private actors participating in the evaluation of claims. When examining whether it is desirable for private individuals to determine how much compensation a claimant may receive, it is important to go back to the reason why we otherwise would prefer judges to make such determinations. Traditionally, we are taught to believe that judges are immune from the political process and therefore able to participate in the resolution of disputes free from partisan considerations. (84) Federal judges are thought to be even more independent. The life tenure and salary protections in Article III provide a level of independence perhaps matched only by law professors. (85) State judges are increasingly appointed, or subject merely to retention elections, or are typically granted long terms to ensure a high degree of political independence. Today, however, it is becoming increasingly clear that federal and state judiciaries are more politicized than in recent memory. Congress has taken actions directly aimed at judicial independence. (86) Increasing attention has been paid to the political battles over the appointment of federal judges. (87) Justice Stephen Breyer has questioned whether, as a matter of cognitive bias, judges can avoid making decisions that are not determined by their political perspectives. (88) A desire to get reelected may at times motivate state court judges to rule in one way or the other. (89) Moreover, in recent years, state judicial elections have become "meaner," prompting state court judicial candidates to publicize their views on disputed issues. (90) That mass tort litigation specifically pushes political buttons is beyond question. Specifically, breast implant litigation, the Agent Orange cases, and tobacco litigation are examples of the "confluence of mass torts and contemporary political controversy." (91) And tort reform has become a potent electoral issue. For example, President Bush has made the protection of corporations from lawsuits an important part of his political agenda during his second term. (92)

Political considerations can arise in any mass tort case. The parties fight many battles between the time a case is filed, the time related cases are consolidated, and the time a settlement is achieved. Defendants are not likely to negotiate before testing motions to dismiss or for summary judgment. There is a need for judicial decisionmaking on issues such as causation and the statute of limitations, for example, to set the parameters of liability for the particular litigation. Resolution of issues such as these by the court may cabin the number of claimants, types of injuries, and settlement ranges. In other words, until the mass tort litigation is "mature," (93) the parties will be negotiating in the dark about appropriate levels of funding to resolve all or most claims. Judicial decisions such as these, however, expose the judiciary to the political problems discussed above.

When judges let cases get to a jury that then awards a multimillion- or even billion-dollar judgment, political considerations loom even larger. (94) For example, in the tobacco litigation, a jury in Florida awarded a class of Florida plaintiffs more than $100 billion. (95) The award was overturned on appeal, though the matter is still before the Florida Supreme Court. (96) In other words, it is the result of trials, not a decision on a motion for summary judgment, for example, or the settlement of cases, that is most likely to put political pressure on courts. The results of trials, though they may be warranted, lead to unpredictability as well as unwanted headlines, followed by additional political pressures on the judicial systems. For example, as discussed in the next Parts, developments at the federal level sparked a forum selection battle that has led to efforts in Congress and state legislatures to constrain the discretion of state court judges.

b. Differential procedures in state and federal court

First, the federal judiciary, led by the U.S. Supreme Court, has made federal courts less attractive, generally, to plaintiffs in certain kinds of cases. (97) The Court's decision in Amchem (98) made it less likely that federal courts would certify class actions, and its decision in the 1986 trilogy of summary judgment cases, (99) together with its decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., (100) have made it tougher for plaintiffs to survive motions for summary judgment in federal courts.

Second, as discussed in the next Part, Congress has enacted legislation and is considering other bills that allow more complex state-claim-based litigation to be adjudicated in federal court. (101) The political nature of these legislative moves cannot be disputed. For example, the 2003 version of the Class Action Fairness Act, which would have channeled class action cases to federal court, was sponsored by eighteen Republican members of the House of Representatives and only three Democrats. (102) The 2005 version of the Act, which was signed into law by the President on February 18, 2005, was cosponsored in the House of Representatives by sixty Republicans and thirteen Democrats. (103) The purpose of the Act, as Senator Arlen Specter put it, is
 to prevent judge shopping to States and even counties where courts
 and judges have a prejudicial predisposition on cases. Regrettably,
 the history has been that there are some States in the United States
 and even some counties where there is forum shopping, which means
 that lawyers will look to that particular State, that particular
 county to get an advantage. (104)

This is nothing new, and indeed appears to be a replay of events taking place at the end of the nineteenth century. As the United States became more industrialized and business entities came to the forefront of the economy, the federal judiciary exploded to accommodate industry. (105)

c. Forum shopping and its legislative response is an indicator of the recognition of courts' biases

As the stakes in complex litigation continue to rise, particularly in mass tort cases, these judicial and political developments have resulted in an unprecedented degree of forum shopping. (106) The volume of cases involving removal from state court to federal court demonstrates the truth of this assertion. (107) However, the removal of complex cases by defendants to federal court has undermined state autonomy and prerogatives, at least as seen through the lenses of the state judiciaries. (108) Removal of state-claim-based cases to federal court, where they may be dismissed by a federal judge, in situations where plaintiffs in such cases may have reached a jury had the cases remained in state court, does not seem to be within the spirit of the Erie doctrine: (109) that the result reached in the federal court be the same as in the state court across the street. (110) These developments, of course, have led plaintiffs' lawyers to seek haven in the state courts. Some state courts, and certain counties within some states, have become magnets for plaintiffs in certain forms of litigation. (111)

The political pressure to do something about plaintiffs' lawyers has led to efforts on the federal level to curb forum shopping. For example, the House of Representatives passed two bills in the 108th Congress to prevent plaintiffs' lawyers from controlling the forum for the resolution of disputes. One of these bills, the Class Action Fairness Act, (112) was reintroduced and passed both houses of the 109th Congress, and was signed into law by the President in February 2005. The Act allows defendants to remove most state-claim-based class actions from state court to federal court with only minimal diversity and relaxed jurisdictional amount requirements. The Litigation Abuse Reform Act, (113) which is primarily aimed at restoring Federal Rule of Civil Procedure 11 to its 1983-style draconian version, also contains a provision that would restrict the venue for litigation, in state and federal courts, to the states in which the plaintiff is domiciled or was injured, or where the defendant is doing business. (114) Anti-forum-shopping measures have been adopted in states that had been perceived as plaintiff-friendly to control such state judiciaries. (115) The Gulf states, which had been and to some extent still are important state court fora, have witnessed legislation that requires state court judges to behave more like federal judges. (116)

Putting aside the question whether these developments are a good thing or a bad thing, or in whose favor these developments cut, there is the reality that judges are being restricted by the political process. A combination of forum shopping and the political pressures on courts raises the question whether courts can be as independent as we might wish them to be. Judges, particularly state court judges who do not receive the life tenure protections of Article III, may be unable or unwilling to resolve those fundamental issues of right and wrong in the traditional common law way. For example, state courts that routinely permit class certifications that in turn put settlement pressure on defendants, and in whose courts plaintiffs win large jury verdicts, know that they are inviting the types of federal legislation discussed above that have (or would have) the effect of depriving such courts of jurisdiction over such cases.

The purpose of these sections is not to suggest that individual judges are biased per se, but rather that there are structural influences that put political pressures on state and federal judges that may shape the way judges are likely to behave, and that the parties to litigation respond to their perceptions of these influences to best achieve the aspirations of their clients. To the extent that judicial independence may be compromised in important ways, arguments against using private trustees lose some force. Depending on how they are appointed and the level of official supervision, private trustees are a further step away from the political process, arguably "less subject to capture," (117) so to speak, if proper controls are put into place. Because, as explained in Part II, judges should be involved in the selection and supervision of trustees, it can be argued that using trustees serves no purpose in terms of eliminating some of the political and structural biases discussed in this Part. Part II, however, will offer suggestions for the selection of trustees that are likely to enhance their independence.

3. Nonjudicial adjudication can promote fairness

Commentators have developed an important critique of nonjudicial claims resolution. As Owen Fiss, (118) Judith Resnick, (119) and others have argued, the development of the law can be undermined by nonjudicial adjudication, the bureaucratization of the judiciary, (120) and managerial judging. One can add to this list the type of hybrid claims resolution that this Article has described. However, for several reasons, the promise of judicial adjudication is overstated in the typical case that results in the creation of a claims resolution facility. Indeed, in hybrid complex litigation claims resolution, the law can evolve in important ways, and the goal of achieving justice in terms of fairness and efficiency can be accommodated. (121) Beyond a utilitarian argument that even if some individual claims are not as "fairly" resolved as they would have been in a judicial context, mass claims administration is preferable because the judicial system would crash if all claims had to be adjudicated individually, the fears underlying the Fiss/Resnik argument are less forceful today than in the past.

First, as Resnik and others have recently lamented, adjudication and the development of the law have atrophied under the minimalist approach of the Rehnquist Court. (122) For example, Resnik has written that the relatively obscure opinions Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc. (123) and Great-West Life & Annuity Insurance Co. v. Knudson (124) "must be understood as working in tandem with the majority's restrictions on the power of Congress to develop new federal rights." (125) She explains how the holdings in these cases teach federal judges to provide remedies only with express congressional permission, and then to grant such remedies narrowly. She further shows how the Rehnquist Court has attempted to convince Congress not to grant such permission in the first place. (126)

Moreover, Resnik is most concerned about the decline of adjudication in federal question cases involving constitutional and federal statutory rights. In such cases, the plaintiffs typically seek resolution of broad questions of law that need to be enunciated. Injunctive and declaratory relief are the primary types of remedies sought in such cases. In contrast, in the cases that typically result in a claims resolution facility, the plaintiffs seek money damages, and their claims tend to be based on state law. Additionally, the key issue once a claims resolution facility is created is the determination of the plaintiff's eligibility for relief in terms of product identification or causation, issues that have no impact beyond the individual plaintiff.

Second, the adjudication function of the courts is compromised when courts of appeals fail to publish their opinions and refuse to allow them to be cited as precedent. Some federal courts of appeals thus mete out essentially private justice when they refuse to allow all their decisions to be used as precedent. (127) By refusing to publish opinions, such courts are acting in essence as private dispute resolvers because these opinions do not purport to make law except as applied to the cases they concern.

Third, as Russell Korobkin argues, the law has an important role to play in ADR and other private settlements. He observes that it is incorrect to view the choice between an adjudicated outcome of a dispute and settlement simply as one that invokes the rule of law, on the one hand, and private contract law, on the other. Rather, the law significantly affects nonadjudicated settlements in two ways. The first is rather obvious: a litigant with a strong case as a matter of law can demand more than one with a weaker case. Known substantive legal entitlements affect bargaining power. Second, the legal rules governing the adjudication process and settlement conduct also influence private dispute resolution. For example, the law of bargaining behavior limits misrepresentation and coercion in nonjudicial fora, and adjudication rules, such as fee-shifting statutes, offer-of-settlement rules, evidentiary restrictions concerning settlement negotiations, and judicial review of some types of settlement agreements all affect disputants' bargaining power outside the courthouse. (128)

While Korobkin's thesis does not purport to apply to trust resolution processes, it clearly can and does. Private persons designing systems for compensating claimants out of administrative trust funds similarly act with the same background of substantive and procedural rules. Depending on their grant of powers, they may have greater flexibility in carrying out their duties. Nonetheless, they will be constrained by existing law. Accordingly, while the parties are bargaining over the contours of a settlement in mass tort litigation, they will be constrained by existing legal principles, and the settlement they reach necessarily will reflect aspects of this law, such as historical settlement amounts and criteria for proving causation, that often become part of the settlement plan or reorganization.

Once a settlement results in the establishment of a trust, the private adjudicators running the trust generally will have to develop standards for making awards and then will have to determine how to make compensation awards to each claimant. At that point, precisely because they may be technically unconstrained in a binding sense by existing law, independent trustees can try to develop the "best law" to apply. (129) Therefore, the use of private trustees may facilitate discussions about the proper evolution of the law, in order to ensure that like claimants are treated alike. For example, the VCF provided the opportunity to rethink the collateral source rule and whether to compensate survivors of domestic partners, to name only a couple of issues. (130)

The Fiss/Resnick position places a very high degree of emphasis on the importance of getting things right, a laudable goal. However, another important value in the law is finality, especially in circumstances where there is no clear answer to a legal question and where reasonable differences are leading to escalating conflict among parties and political discord, as is often the case in mass tort litigation.

Additionally, because some of the questions being decided in these mass tort cases are unsettled, with unique factual patterns and issues, then perhaps it is best that they are not decided in ways that are making broad-reaching precedent: hard cases make for bad law. In this respect, there is a major difference between mass claims resolution and traditional public law litigation. The type of relief typically sought in traditional public law litigation is injunctive relief. The key issue generally in such cases is whether undisputed governmental conduct gives rise to a constitutional or federal statutory claim. Such cases generally can be decided on summary judgment. In such cases, legal precedent is determinative. One legal ruling may determine the relief for numerous parties. The Fiss/Resnik critique of the use of settlement and private adjudication is appropriate in such cases because precedent matters.

In mass claims litigation, in contrast, the plaintiff generally seeks monetary relief, and the key issues in the case tend to be factual. For example, in the breast implant litigation, the key issue is whether exposure to silicon causes autoimmune disease. In the Dalkon Shield litigation, the key issue was whether the Dalkon Shield, as opposed to some alternative cause, was responsible for a claimant's injuries. Even if there are several key legal issues in a set of disputes, individual determinations will need to be made to determine an appropriate remedy for each victim. Moreover, the factual issues are generally complex and require for their resolution expertise in extralegal matters. In such cases, precedent is of less value and the need for innovation and expertise greater. The balance here is similar to that discussed in the legal commentary about the virtue of standards that call for an ex post adjudication by a judge, as opposed to rules that can be determined before adjudication. (131)

To reach a final resolution of a complex mass tort litigation in the right way--with appropriate rules--the process developed and implemented by trustees must be perceived as legitimate. As discussed in the next Part, legitimacy can be enhanced by proper selection procedures for trustees.


The discussion in Part I establishes that, like it or not, mass tort and similar complex claims resolution is characterized by the participation of public and private actors not simply as parties and their attorneys, but also as adjuncts of the judiciary who set standards and make awards. It also suggests that such private adjuncts or trustees may be capable of being at least as impartial as judges, and that such persons may be able to advance the evolution of law (because they are not technically constrained by binding legal precedent) and enhance the finality principle.

Thus, the question is not whether private persons should play a discretionary role in resolving claims, but who those persons should be and how they should be selected. The reality is that mass tort litigation, or the prospect of it, is likely to lead to the establishment of a claims resolution facility that will be run by private persons rather than judicial officers. (132) Once the mass tort ball gets rolling, the trial judges will encourage the parties to negotiate. A negotiated settlement that accounts for an established or predicted number of claimants, the range of possible injuries, and a fund sufficient to compensate the claimants for those injuries requires trustees who can develop standards and determine the compensation for each of the claimants. The ability of the claims resolution facility to function optimally and legitimately depends on who the trustees are.

A. The Degree of Discretion

Integrally related to the question of who the trustee should be is the question of how much discretion the trustee should have. A high degree of discretion, together with a measure of independence, enables trustees to make the necessary decisions to promote the goals of an administrative trust. If the goal of an administrative trust is to provide justice that comes as close as possible to the judicial ideal, trustees ought to have as high a degree of discretion as judges would have. However, the more discretion a trustee has, the more important the identity of the trustee.

If the private individual charged with running a trust is exercising an essentially ministerial function, rather than a high degree of discretion, the use of a private person and the identity of this person become less controversial. For example, while scholars have discussed the role of special masters in the discovery and settlement phase of the Agent Orange litigation, (133) there is no commentary on the facility itself because there was nothing controversial about how it was administered. (134) There was a mandate with a formula as to how to distribute the proceeds of the Agent Orange settlement that was quite specific and provided no meaningful discretion. (135) However, because the administrators of the Agent Orange facility had so little discretion to individualize the awards, the settlement scheme was subject to criticism precisely because the "overall award bore no discernible relationship to the injury claims of the victim class." (136)

In contrast, the DS Trust trustees (137) and the Special Master of the VCF (138) were provided a high degree of discretion in developing standards and determining how much claimants ought to be paid. Although broad parameters were set, numerous decisions had to be made, and awards were individualized to the highest degree possible. Certainly, the DS Trust and the VCF failed to provide the same degree of individualized justice that a jury trial would have provided. Moreover, as in the case of Paul Bremer's administration of Iraq, (139) decisions made by the DS trustees, and those made by Ken Feinberg as Special Master of the VCF, were lambasted by some commentators and those who might be affected by those decisions. (140) However, the DS Trust and the VCF generally have been described as a success in terms of fairly and efficiently compensating victims. (141) In the case of the DS Trust, previous articles have shown how fairness and efficiency were served impartially. Fairness, in the sense of equality of treatment of like claimants, was a major goal of the DS Trust. The DS Trust claims resolution process ensured that equally situated claimants would receive identical compensation. (142) Efficiency was served by ensuring that administrative costs be held as low as possible. (143) The DS trustees assiduously sought to avoid the appearance of bias, and indeed were criticized for refusing to be more amenable to the suggestions of the parties while developing its policies and procedures. (144)

The DS Trust and VCF experiences support the argument that endowing trustees with a high degree of discretion is critical to an administrative trust's success. At the same time, endowing trustees with a high degree of discretion ups the ante in terms of who such trustees should be and what the terms of the settlement should provide with respect to the degree of discretion.

Francis McGovern has noted that the design of claims resolution facilities entails a search for legitimacy. (145) Generally, judicial approval provides the desired legitimacy. However, when the design of the facility and the implementation of the design are performed by different persons, as when the court approves the design but the design provides those implementing the plan with a high degree of discretion, the beneficiaries of the claims resolution facility "are put in the position of judging the design of a proposed facility before they know the actual application of that design to their individual claims." (146)

In McGovern's view, a model that endows the trustees with a high degree of discretion is problematic because of the uncertainty of outcome for beneficiaries of the trust. Another model is to use experts/"trustees" during the negotiation process, to design the facility and to develop the rules that the trustees will implement. Although the rules so developed are subject to judicial approval in either a class action or bankruptcy context, such rules are problematic if the rules advanced by such experts/trustees are driven by the needs of the particular clients they represent.

Accordingly, it is important to return here to a definition. Earlier in the Article, I defined "trustee" broadly to encompass any private individual who is involved in setting the rules for an administrative trust, including the experts for the parties. As a practical matter, such experts, like trustees accorded a high degree of discretion, are the rulemakers. Therefore, they are equally as important as the trustees who administer a trust with a high degree of discretion. Any settlement plan promulgated by such experts that dictates the rules of settlement without providing for a high degree of trustee discretion should be subject to a heightened level of scrutiny at the approval stage. The settlement plan proponents at that stage act on behalf of their clients. Although parties ought to be able to control who their experts will be during the course of settlement negotiations, to ensure that the potential of the hybrid system of mass claims resolution can be realized, the experts who develop the essential rules for determining compensation ought to be controlled by proper selection procedures, discussed below.

B. The Repeat Player Issue

Judge Weinstein has lamented that there is a relatively small pool of persons who are equipped to take on the responsibility of serving as a proxy for a judge. (147) Similarly, a study prepared for the Judicial Conference in connection with proposed amendments to Rule 53, governing the appointment of special masters, noted the difficulty in locating unbiased candidates who had the expertise that would be required for the role of special master. (148) It is questionable whether there is in actuality such a small pool. Nonetheless, the reality is that a small number of persons are appointed repeatedly to positions as special masters and fund administrators even though, for example, it would seem that the prior and current provisions of Rule 53 would require a more thorough examination of criteria for appointment. (149) Moreover, parties generally have little to say about who should be appointed, and ultimately, the decision comes down to the judge's decision to pick a particular special master. (150)

In her article on the "ad hoe" administration of justice, Linda Silberman wrote of the "good news/bad news" arising out of the use of private persons in the administration of justice:
 As a matter of principle, the lack of formal procedures for
 selection of a special master is troubling.... The modern-day
 special masters, however, have more often than not been either
 prominent experienced practitioners with particular pre-trial
 expertise and the ability to make nearly full-time commitments,
 or prestigious academics with impeccable credentials and time
 flexibility. (A quick survey of the special masters in the cases
 noted here suggests that there is also a highly regarded crew of
 academic "proceduralists" who have contributed not only to the
 processing of the individual case, but also to conceptual thinking
 about pre-trial management and innovative practices for complex
 litigation.) Notwithstanding the high level of energy and competence
 of these individuals, they are selected from a narrow circle and
 have no institutional imprimatur to function as decision makers....
 However, the special master system continues to be a peculiar
 hybrid; for even where parties are willing to pay for a special
 master, they return (at taxpayer expense, of course) to the judge
 to seek review of the master's rulings. To the extent that no
 review is requested or when review becomes pro forma, adjudication
 of some important issues has then been inappropriately abdicated
 to the special master, and there is always the danger that the
 judge does not engage in the intellectual process of decision
 making once a special master has made her report. (151)

This is a powerful critique of the hybridization of justice. The existence of repeat players in the trust fund game raises a host of questions. (152)

Courts recognize the problem. For example, the district court judge overseeing five asbestos company bankruptcies that had been assigned to him for coordinated case management was disqualified by the Third Circuit because of the appearance of impropriety created by his reliance in those asbestos-related bankruptcies on advisors who represented future claimants in another asbestos-related bankruptcy. (153) Indeed, the Third Circuit noted the "hybrid status" of the district court's private advisors, who included lawyers and a law professor who have been involved in numerous mass tort cases. (154) The American College of Trial Lawyers, in its Mass Tort Litigation Manual, referring to the Third Circuit case, expressed its concerns about special masters with close ties to the court or the parties, stressing the need "to balance the desire to obtain experienced masters with the need to assure that any individuals selected by the court are not perceived as having interests as a result of work performed for any party in the litigation." (155)

The arguments raised above for using trustees with a high degree of discretion begin to lose force when the same private individuals are chosen again and again. This problem, in turn, is exacerbated by another set of repeat players--the judges and lawyers who regularly appear in mass claims litigation. (156) The impartiality of the repeat players can be questioned by those who perceive that the repeat players' decisionmaking is clouded by a fear of alienating the other repeat players who chose them. This raises the question whether such actors can remain truly independent and exercise their discretion appropriately. A perception that repeat players are making decisions to please the judges and lawyers in an effort to gain more business undermines the legitimacy of the administrative trust itself and is, therefore, problematic for the administration of justice.

Moreover, in some respects, repeat player trustees become quasigovernmental players, although generally better compensated than their judicial counterparts are. Additionally, as Silberman has suggested, they are essentially unaccountable on a general political level. (157)

There is no question that many of the repeat players who have played prominent roles in mass tort litigation have a special expertise. And, certainly, there is a virtue to the predictability of repeat players. Moreover, repeat players attract their fair share of criticism. (158) Accordingly, the critique may well be an appearance problem more than a problem of actual conflict of interest. (159) Nonetheless, the problem needs to be addressed because repeat players can be perceived as being accountable to the parties or court responsible for their appointment, rather than to the claimants.

C. Solving the Repeat Player Problem

This section explores two ways in which the repeat player problem can be ameliorated. One involves a selection process that expands the number of qualified potential trustees. Another involves clarification of the duty of the trustees and the question of accountability.

1. Selection of trustees

Currently, as suggested above, the process for selecting trustees appears to be largely court- and attorney-driven. This process has led to the selection of competent and innovative trustees notwithstanding the problems outlined above. Even if the repeat player problem is one of appearances, it is important that the selection system be improved. First, improving the selection process, even if it results in repeat players' selection, is likely to ensure that new players will be brought into the administrative trust system.

Second, the introduction of new players is likely to enhance innovative approaches to dispute resolution. Mass claims litigations are not fungible. Processes that may work well in one context may not work in another. The circumstances of a particular mass tort change as well. For example, the asbestos litigation today is far different than it was ten or so years ago. Numerous traditional asbestos defendants have invoked the protection of Chapter 11, leading plaintiffs' attorneys to file claims against whole new industries. The mix of claims filed over the last several years also has changed. Relatively fewer claims for mesothelioma and other serious injuries are being filed, and more claims are being filed by claimants who have been exposed to asbestos but who may not have manifested serious injury. Nonrepeat players may bring new ideas to the solution of the problems presented by these developments.

The idea here is similar to the idea that corporate governance can be improved by the introduction of more independent directors, as opposed to insiders. Although there is a need to study whether introducing more outside directors actually improves the performance of a corporation, (160) intuition suggests that the selection of a more diverse group of trustees may enhance decisionmaking.

a. Panels of trustees

Many trust instruments provide for a panel of trustees rather than one trustee. Of course, there are exceptions, the VCF being one and the Dow Coming Breast Implant Settlement Fund being another. The two aspirations outlined above for improving the selection process are likely to be realized if the administrative trust provides for more than one trustee. If the selection process results in the selection of repeat players, the lawyers who in the past have been more directly responsible for the appointment of the repeat players will have some confidence that the trustees will act in a predictable manner. But the goals of innovation and legitimacy will be served as well if the selection process, as it should, results in the selection of a nonrepeat player as well. Accordingly, settlement agreements should provide for a panel of trustees charged with developing an appropriate compensation system, rather than one trustee.

I argued above that trustees should have a comparable degree of discretion to judges. It follows that a group of trustees will make better decisions than one trustee. Diversity among judicial decisionmakers facilitates the exchange of diverse ideas that lead to improved decisionmaking. (161) Additionally, an empirical case can be made that decisionmaking is enhanced when individuals with diverse views participate in the decisionmaking process. (162)

b. Criteria

Several approaches to adopting new selection systems for trustees can be considered. One basic approach would be to require persons interested in the position of trustee to apply for it. Courts could develop a list of exacting minimum criteria that judges and/or the parties ought to consider when determining who should be charged with developing rules and distributing the fund to claimants. The criteria should include typical personal characteristics, such as gender and race, and merit-based factors. These factors include educational background, including whether the candidate has advanced degrees in a relevant area; professional experience, bar association work, or academic writing in areas relevant to the duties of a trustee, such as claims resolution experience, economic theory, or finances; leadership positions in bar associations or other organizations; pro bono experience; and managerial experience.

Disclosure ought to be made of any comparable or relevant prior experience. Any candidate who is a repeat player ought to be required to list not only relevant experiences, but also to identify specific innovative policies and procedures developed in each of the cases and why they were adopted. Similarly, in order to ensure that trustees will act independently in the best interests of the claimants, they ought to be required to list examples of situations in which they took positions that diverge from those of their peer groups in matters unrelated to their representation of a client. The list ought to be made public and disseminated so that interested prospective trustees can present their credentials to the court and the parties for review.

c. Selection criteria

The next part of the process under this approach would be to provide some objective criteria for the selection process by the court, or by the parties with the selection approved by the court. For example, there could be a repeat player score. A high number of prior appearances of a particular repeat player could be offset by the selection of a nonrepeat player. Additionally, a repeat player could be scored in terms of claims resolution rates. If one's proposals as a party expert or one's tenure as a trustee resulted in high resolution rates, corrected for degree of difficulty, one would receive a high score. There also could be an innovation score. A repeat player whose application presented indicia of innovation would be preferred to one who does not seem to be innovative. A nonrepeat player who evidences practical and innovative ideas would also receive a high score. Innovative ideas that should be evaluated highly would be ones that combine the highest degree of individuality in claims resolution with a reasonable administrative cost. Higher levels of claimant participation in the process enhance the legitimacy of the process. (163)

Additionally, since trustees are proctors for judges, it may be appropriate to borrow from some of the recent literature on the selection of Supreme Court Justices and other judges. (164) The selectors should consider how the criteria outlined above demonstrate that those applying are, and therefore are likely to serve as, productive, innovative, and collegial trustees, whose varied experiences will lead to a "balance of eccentricities" (as Justice Cardozo once said) that would lead to legitimate standards. (165) One virtue of appointing a repeat player is that there will be no need to reinvent the wheel. However, changed circumstances may require a better wheel. The addition of new players will facilitate a productive dialogue about how to deal with the new challenges presented in any mass claims situation. In other words, the selectors should consider a balanced set of trustees in terms of their actual experience to achieve the aspirations discussed above.

The selection process could also borrow from the jury selection process. Once prospective trustees have applied, their applications would be screened for obvious bias. Once the panel of prospective trustees is finalized, the court clerk could randomly pick a group from the panel for a public voir dire by the supervising judge and the attorneys for the parties. Claimants and the defendants should be given notice of the proceeding and be given the opportunity to question the prospective trustees as well. Prospective trustees could be challenged for cause, and the parties could be provided a certain number of peremptory challenges.

While somewhat fanciful, such an approach has the virtue of controlling the repeat player problem. But its very randomness may result in relatively less well qualified trustees. There are several variations of the jury selection approach that could ameliorate this problem. For example, the parties could make their preferred selections from the panel, with the court making the final selection after balancing the factors described above and making written findings.

Another possibility is the establishment of a National Panel of Trustees, with the trustees in any given case selected by lottery--like the way judges are selected for cases in the federal courts. The randomness of such an approach would solve the repeat player problem. However, the panel will probably be quite large, given the number of law professors, lawyers, and economists who likely would seek to be on such a panel. Because of the lack of control the parties and the courts would have in the selection process, it is hard to imagine that this proposal would generate much enthusiasm.

2. Accountability

No matter who is chosen, trustees must be accountable to the particular claimant group they were appointed to serve. For example, the duty of the trustees of the DS Trust expressly ran to the claimants themselves. Every decision the trustees made had to pass the test of whether the decision was in the best interests of the claimant group as a whole. (166) This approach led to major criticisms in the early years of operation by specific plaintiffs' lawyers who were concerned about how our decisions would affect their particular clients. Additionally, by trying to stay independent, the trustees were criticized for being too insular. (167) However, by focusing on the needs of the claimants as a whole, rather than on any specific criticism, the trustees were able to make the decisions they thought would best achieve the goal of paying as much as possible to each claimant, consistent with his or her level of proof and the limited fund available to distribute, at the lowest possible administrative cost.

There are two mechanisms for ensuring that the trustees remain faithful to their duty. First, there needs to be an appropriate level of judicial supervision. If the repeat player problem is solved by a selection system such as one of those considered above, the appearance of bias raised in the asbestos case discussed above disappears. The mass claims administration system will be perceived as less closed, which will enhance public confidence in the systems developed. The DS trustees were supervised by Judge Robert M. Merhige. Although the court had the authority to supervise major financial matters, such as the approval of expert contracts, (168) the trustees had complete operational control, and the flexibility to make appropriate policy. Having operational control enabled the DS trustees to thoroughly explore alternatives and to implement them independent of the parties and the court in the best interests of the claimants.

Second, and, most importantly in the experience of the DS trustees in terms of accountability, the DS trustees had to answer to the claimants. Their fiduciary duty ran to the claimants, and the trustees had the exclusive authority to make policy for the trust. The normative position here is that nonrepeat players may meet certain desiderata of impartiality better than repeat players. Part of this is because they are not beholden to the corporate parties or plaintiffs' lawyers, who have committed mass torts or represented victims of them, and thus may have a stake in using repeat players in future private or hybrid adjudications.

However, being a repeat player can, in some circumstances, enhance one's sense of responsibility. This is because there is a kind of implicit sanction involved in the prospect of not being hired again. What guard is there to ensure that nonrepeat players act responsibly and impartially, rather than on whim? If the DS Trust had designed a bad system, vast numbers of claimants could have voted with their feet by rejecting their offers and heading for trial. The trustees knew that they needed to design a system that would appeal to claimants, or else the Trust would not be able to succeed in its goal of paying the Dalkon Shield claimants fairly or efficiently. If the trustees failed, they could be removed, as three trustees were. (169)

Whether a trustee is a repeat player or not, accountability to the claimants, with the court in position to supervise major expenditures, is likely to result in optimal policies and procedures that will benefit the claimants rather than particular parties.

D. The Dalkon Shield Claimants Trust." Paradigm Lost Revisited--A Story

Years ago, a lawyer from the law firm representing the claimants committee in the A.H. Robins Chapter 11 case called me. The purpose of the call was to interview me for a position as a trustee of the Other Claimants Trust established as part of the A.H. Robins plan of reorganization. I had an academic interest in the A.H. Robins Chapter 11 case, having written an article about choice of law in mass tort cases. (170) I told the caller that I had no experience in claims resolution or administration. He told me that was not a problem because we would be empowered to hire experts who would help us figure out what to do.

Some months later, the court appointed me to the position. Shortly thereafter, after a motion to remove the trustees of the DS Trust resulted in the removal of three of the five original trustees, the court appointed me to serve as a trustee of the DS Trust. (171) Along with our executive director, my cotrustees, most of whom had never served in a similar capacity, (172) and I decided whom to hire as our experts, and I served with our experts in determining how we would implement the plan of reorganization and its claims resolution facility. (173)

The DS Trust developed some very novel approaches. We used an expert who had never been involved in a mass tort before. (174) We did not use a matrix, as the asbestos trusts do, but rather a "highly structured, rules-based decision making system." (175) We adopted a no-negotiation policy. (176) We created an ADR vehicle that provided claimants who wanted to reject their administratively generated offer with the opportunity to obtain a higher award from a neutral third party. (177)

These policies, while they proved successful in terms of providing fair compensation as well as a high degree of individualized claims resolution, (178) led me to predict early on that our innovative approaches would lead to the DS Trust establishing a "paradigm lost." I speculated that "[t]hose who historically have had much to gain in mass tort cases--namely, lawyers and other professionals--would lose much of their power if the Dalkon Shield Claimants Trust succeeds in its goal of distributing the settlement fund as fairly and efficiently as possible." (179)

To my knowledge, nobody questioned our impartiality. (180) But, there was a lack of a comfort level with the DS Trust on the part of plaintiffs' lawyers in particular, because we were an unknown quantity for the most part, and we operated independent of their suggestions as we developed our policies.

Reflecting on my own experience, I certainly was not a repeat player when I was appointed. (181) Nonetheless, I doubt that I would have been appointed had I not been professionally acquainted with the court and one of the individual trustees. The point of telling this story is to suggest that the mass tort claims industry does not appear to value innovation as much as it values predictability. Thus, I am not sanguine that the selection process will be changed to include significant numbers of new players. The quality and legitimacy of dispute resolution by private persons may suffer as a result.


The question of privatization of governmental functions is a charged and complicated one. Reflecting on my experience, however, and returning to the question I have posed here--whether private persons ought to serve as adjudicators, and who they should be--I believe I do have part of an answer: Maybe it does not matter whether the person on the street has heard of the person appointed. Maybe it is a good idea that the person selected has a low profile. The absence of a lightning-rod history perhaps suggests a degree of impartiality. What matters is accountability. It may sound naive, but as long as a trustee acts in the best interests of the claimants, and is ultimately accountable to them as opposed to the parties responsible for their selection, the goals of fair and efficient compensation in mass tort litigation can be met. There are two checks on such trustees: the supervising court as well as the claimants they serve. If trustees fail to discharge their duties, the court may remove them, or the claimants will invoke litigation rather than take advantage of the administrative process.

To ensure the highest degree of impartiality and flexibility, a group of independent trustees should be created and charged with broad powers by a plan of reorganization or a settlement. Of course, though, that raises the stakes in terms of who ought to be appointed. The tendency to appoint repeat players is understandable because huge amounts of money are at stake. In my view, however, by blending experience with fresh perspectives, the principle of and appearance of impartiality is served. The pool of possible private dispute adjudicators may well be larger than thought if one looks beyond the ranks of those who have held positions in the past and the people they simply know and trust. Surely, for example, there are other procedure scholars who may be pleased to receive a call.

(1.) President George W. Bush appointed L. Paul Bremer III as Presidential Envoy to Iraq on May 6, 2003, and in this capacity he served as the administrator of the Coalition Provisional Authority. Prior to being in Iraq, Ambassador Bremer, a twenty-three-year State Department employee, was chairman and chief executive officer of Marsh Crisis Consulting Company, a crisis management firm owned by the financial services firm Marsh & McLennan. From 1989 to 2000, he was the managing director of Kissinger Associates, a strategic consulting firm headed by former secretary of state Henry Kissinger. Coalition Provisional Authority, Biographies: Ambassador Paul Bremer, at 30, 2004).

(2.) Judge Robert R. Merhige appointed me to a position as a trustee in November 1988. I was appointed chairperson of the Trust by my cotrustees in August 1989, and served in that capacity until the Trust completed its business and the trustees were discharged in March 2000. See Georgene M. Vairo, Georgine, The Dalkon Shield Claimants Trust, and the Rhetoric of Mass Tort Claims Resolution, 31 LOY. L.A. L. REV. 79 (1997) [hereinafter Vairo, Rhetoric]; Georgene M. Vairo, The Dalkon Shield Claimants Trust: Paradigm Lost (or Found), 61 FORDHAM L. REV. 617 (1992) [hereinafter Vairo, Paradigm Lost].

(3.) Kenneth Feinberg was appointed as Special Master of the VCF on November 26, 2001. Attorney General John Ashcroft, Remarks at Announcement of the Appointment of the Special Master to Administer the September 11 Victim Compensation Fund, at 11_26.htm (Nov. 26, 2001); see also Editorial, The Victims' New Referee, N.Y. TIMES, Dec. 1,2001, at A26 ("In a long career resolving complicated disputes, Kenneth Feinberg has never seen a case as tangled and emotionally volatile as the one he confronts now.").

(4.) See, e.g., Linda Silberman, Judicial Adjuncts Revisited: The Proliferation of Ad Hoc Procedure, 137 U. PA. L. REV. 2131, 2131 (1989) ("One clear example of such ad hoc proceduralism comes via the increased number of judicial adjuncts [magistrate judges and special masters], who customize procedure for particular and individual cases.").

(5.) See, e.g., Judith Resnik, For Owen M. Fiss: Some Reflections on the Triumph and Death of Adjudication, 58 U. MIAMI L. REV. 173, 185-91 (2003) (discussing the shift from adjudication by judges to adjudication by agencies and ADR).

(6.) The September 11th Victims Compensation Fund, unlike others that emerged out of litigation, was created by Congress in the expectation of litigation.


(8.) Robert P. Burns, The Distinctiveness of Trial Narrative, in THE TRIAL ON TRIAL: TRUTH AND DUE PROCESS 157, 157 (Antony Duff et al. eds., 2004); see also Robert P. Burns, A Conservative Perspective on the Future of the American Jury Trial, 78 CHI.-KENT. L. REV. 1319, 1319 (2003) ("[T]he American jury trial, as we have developed it, is one of the greatest achievements of American public culture.").

(9.) Gillian K. Hadfield, Where Have All the Trials Gone? Settlements, Nontrial Adjudications, and Statistical Artifacts in the Changing Disposition of Federal Civil Cases, 1 J. EMPIRICAL LEGAL STUD. 705, 706 (2004). For a discussion of the possible reasons for the decline of trials, see Judith Resnik, Migrating, Morphing, and Vanishing: The Empirical and Normative Puzzles of Declining Trial Rates in Courts, 1 J. EMPIRICAL LEGAL STUD. 783 (2004).

(10.) See generally Abram Chayes, The Role of the Judge in Public Law Litigation, 89 HARV. L. REV. 1281 (1976) (describing the evolution from the private law model to the public law model).

(11.) See Richard Marcus, Public Law Litigation and Legal Scholarship, 21 U. MICH. J.L. REFORM 647 (1988) (assessing the impact of Chayes's article and characterizing it as the most famous of all law review articles).

(12.) See Chayes, supra note 10 (describing the evolution from the private law model to the public law model).

(13.) Id. at 1282.

(14.) Id. at 1284.

(15.) Id.

(16.) Id.

(17.) See Jack B. Weinstein, Ethical Dilemmas in Mass Tort Litigation, 88 NW. U. L. REV. 469, 472, 473-74 nn.10-17 (1994) ("Mass tort cases are akin to public litigation, involving restructuring of institutions by the courts to protect constitutional rights."). David Rosenberg earlier had argued that mass tort litigation is a form of public law litigation. See David Rosenberg, The Causal Connection in Mass Exposure Cases: A "Public Law" Vision of the Tort System, 97 HARV. L. REV. 851 (1984).

(18.) Weinstein, supra note 17, at 474.

(19.) Id.

(20.) Id.

(21.) Id. at 475.

(22.) Id. at 475-76.

(23.) Linda S. Mullenix, Mass Tort as Public Law Litigation: Paradigm Misplaced, 88 NW. U. L. REV. 579, 580-81 (1994) (criticizing Judge Weinstein for treating mass tort cases as public law cases) [hereinafter Mullenix, Paradigm Misplaced]; see also Linda S. Mullenix, Resolving Aggregate Mass Tort Litigation: The New Private Law Dispute Resolution Paradigm, 33 VAL. U. L. REV. 413, 421-31 (1999) [hereinafter Mullenix, Private Law Paradigm] (critiquing the theory that mass tort litigation is akin to public law litigation).

(24.) Mullenix, Paradigm Misplaced, supra note 23, at 581.

(25.) Id.

(26.) Id.

(27.) 521 U.S. 591 (1997).

(28.) 539 U.S. 111 (2003), aff'g in part and vacating in part 273 F.3d 249 (2d Cir. 2001).

(29.) Weinstein, supra note 17, at 474. Indeed, state-claim-based litigation is deserving of the time and attention of federal judges. See N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982) (holding that a state contract claim must be adjudicated by an Article III judge, not a bankruptcy judge).

(30.) See Vairo, Rhetoric, supra note 2 (discussing evolution of mass tort litigation).


(32.) For example, asbestos litigation in the U.S. court system has cost the American economy more than fifty thousand jobs and may total as much as $275 billion. JOSEPH E. STIGLITZ ET AL., THE IMPACT OF ASBESTOS LIABILITIES ON WORKERS IN BANKRUPT FIRMS 3_(2002).

(33.) Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) (striking down a Federal Rule of Civil Procedure 23(b)(3) asbestos class action settlement).

(34.) 527 U.S. 815 (1999) (striking down a Federal Rule of Civil Procedure 23(b)(1)(B) mandatory asbestos class action settlement).

(35.) Vairo, Rhetoric, supra note 2; see also Joseph F. Rice & Nancy Worth Davis, The Future of Mass Tort Claims: Comparison of Settlement Class Action to Bankruptcy Treatment of Mass Tort Claims, 50 S.C.L. REV. 405 (1999) (predicting that the Amchem and Ortiz decisions would, unfortunately, lead to greater use of Chapter 11 to resolve mass tort cases and arguing that class action settlements are preferable to the use of Chapter 11).

(36.) See Rice & Davis, supra note 35.

(37.) Georgene Vairo, Mass Torts Bankruptcies: The Who, the Why and the How, 78 AM. BANKR. L.J. 93, 93-95 (2004) (describing increased use of bankruptcy to resolve mass tort litigation).

(38.) See Adam Benforado et al., Broken Scales: Obesity and Justice in America, 53 EMORY L.J. 1645, 1721 (2004) (discussing how the tort bar's discovery efforts led to breakthroughs in tobacco litigation and exposing the tobacco industry as a "vampiric apparition").

(39.) See Edward F. Sherman, Complex Litigation: Plagued by Concerns over Federalism, Jurisdiction and Fairness, 37 AKRON L. REV. 589, 589-93 (2004) (describing the evolution of complex litigation and noting problems raised by innovative approaches to the resolution of complex litigation).

(40.) See 28 U.S.C. [section] 1407 (2000).

(41.) See FED. R. CIV. P. 23.

(42.) See infra notes 101-04 and 112 (discussing the Class Action Fairness Act of 2005, Pub. L. No. 109-2, 119 Stat. 4 (codified in scattered sections of 28 U.S.C.)), enacted in February 2005).

(43.) See 28 U.S.C. [section] 1334(b) (2000). Section 1334 provides for original and exclusive jurisdiction over all cases under Title 11 (the Bankruptcy Code) and further provides in relevant part that "the district courts shall have original but not exclusive jurisdiction of all civil proceedings ... arising in or related to cases under title 11." Id. Section 1334 has been used in a number of mass tort cases to effect consolidation. See, e.g., In re Dow Corning Corp., 86 F.3d 482, 486-87 (6th Cir. 1996); A.H. Robins Co. v. Piccinin, 788 F.2d 994 (4th Cir. 1986).

(44.) See Georgene M. Vairo, Reinventing Civil Procedure: Will the New Procedural Regime Help Resolve Mass Torts?, 59 BROOK. L. REV. 1065, 1073 & n.40 (1993). For a discussion of the problems associated with the use of offensive nonmutual collateral estoppel, see Hardy v. Johns-Manville Sales Corp., 681 F.2d 334 (5th Cir. 1982).

(45.) See Frederick C. Dunbar & Denise Neumann Martin, Clearing Uninjured Plaintiffs from the Tort System: The Road to a Solution, LEGAL BACKGROUNDER, July 25, 2003, at 1, available at (explaining how many states have instituted "inactive dockets" for "unimpaired claimants").

(46.) See Lawrence Fitzpatrick, The Center for Claims Resolution, LAW & CONTEMP. PROBS., Autumn 1990, at 13 (discussing methods of payment for asbestos claims used by the Center for Claims Resolution (CCR), a consortium for claims payment joined by numerous asbestos defendants).

(47.) See Georgene Vairo, Judicial v. Congressional Federalism: The Implications of the New Federalism Decisions on Mass Tort Cases and Other Complex Litigation, 33 LOY. L.A. L. REV. 1559, 1576-89 (2000) (discussing federal courts' use of the All Writs Act to ensure the primacy of federal dispute resolution in mass tort cases); see also Lonny Sheinkopf Hoffman, Syngenta, Stephenson and the Federal Judicial Injunctive Power, 37 AKRON L. REV. 605, 618 (2004) (discussing limits on federal judicial power to enjoin state court proceedings).

(48.) For example, the MANUAL FOR COMPLEX LITIGATION (FOURTH) (2004) makes clear that judges in complex cases ought to promote settlements. See, e.g., id. [section] 13.13 ("Specific Techniques to Promote Settlement").

(49.) See Elizabeth J. Cabraser, Life After Amchem: The Class Struggle Continues, 31 LOY. L.A. L. REV. 373 (1998) (discussing how state and federal courts can and are continuing to certify settlement classes); see, e.g., Klay v. Humana, Inc., 382 F.3d 1241 (11th Cir. 2004) (Tjoflat, J.) (certifying single RICO class of virtually all doctors in the United States against almost all HMOs and other health insurers in the country); Carnegie v. Household Int'l, Inc., 376 F.3d 656 (7th Cir. 2004) (Posner, J.) (affirming certification of a RICO class of millions and a state law contract claim case for trial after trial judges rejected class settlement as unfair) ("The realistic alternative to a class action is not 17 million individual suits, but zero individual suits, as only a lunatic or a fanatic sues for $30. But a class action has to be unwieldy indeed before it can be pronounced an inferior alternative-no matter how massive the fraud or other wrongdoing that will go unpunished if class treatment is denied--to no litigation at all.").

(50.) See, e.g., Judith Resnik, Failing Faith: Adjudicatory Procedure in Decline, 53 U. CUE L. REV. 494, 544-47 (1986) [hereinafter Resnik, Failing Faith] (criticizing declining use of judicial adjudication to resolve claims); Judith Resnik, Managerial Judges, 96 HARV. L. REV. 376 (1982) [hereinafter Resnik, Managerial Judges] (critiquing managerial judging).

(51.) Vairo, supra note 37, at 106-09 (describing use of 11 U.S.C. [section] 524(g) prepackaged bankruptcy settlements).

(52.) Air Transportation Safety and System Stabilization Act, Pub. L. No. 107-42, [section] 403, 115 Stat. 230, 237 (2001); see generally Georgene Vairo, Remedies for Victims of Terrorism, 35 LOY. L.A.L. REV. 1265, 1273-84 (2002) (discussing the establishment of the VCF).

(53.) See Vairo, supra note 44, at 1093-94; Vairo, Paradigm Lost, supra note 2, at 618, 654-58.

(54.) Indeed, current Rule 53(a)(1)(B)(ii) exempts from the requirement of exceptional circumstances for the appointment of a master appointments that involve "essentially ministerial determinations." FED. R. CIV. P. 53 advisory committee's note of 2003.

(55.) Vairo, Paradigm Lost, supra note 2, at 629-32.

(56.) Peter H. Schuck, Mass Torts: An Institutional Evolutionist Perspective, 80 CORNELL L. REV. 941, 952-53 (1995).

(57.) Mullenix, Private Law Paradigm, supra note 23, at 431-47.

(58.) See supra notes 43-47 and accompanying text.

(59.) See MANUAL FOR COMPLEX LITIGATION (FOURTH), supra note 48, [subsection] 10.2, 11.214, 13.13.

(60.) For example, consider the settlements obtained by the state attorneys general in the tobacco litigation and the federal tobacco litigation brought by the U.S. Attorney General. The gun litigation has been characterized by some successful cases brought by cities and other governmental agencies. See generally Sue Reisinger, High Noon, LAW.COM, Oct. 29, 2004, available at 1098891006017.

(61.) MANUAL FOR COMPLEX LITIGATION (FOURTH), supra note 48, [section] 10.14.

(62.) Id. [section] 11.52.

(63.) Id. [section] 11.51.

(64). Id. [subsection] 11.51-.52.

(65.) Id.

(66.) Owen M. Fiss, Against Settlement, 93 YALE L.J. 1073 (1984).

(67.) See generally Silberman, supra note 4.

(68.) See Resnik, Managerial Judges, supra note 50.

(69.) Resnik, Failing Faith, supra note 50, at 544.

(70.) See Penelope Pether, Inequitable Injunctions: The Scandal of Private Judging in the U.S. Courts, 56 STAN. L. REV. 1435 (2004).

(71.) See Fiss, supra note 66.

(72.) Geoffrey C. Hazard, Jr., Communitarian Ethics and Legal Justification, 59 U. COLO. L. REV. 721,740 (1988).

(73.) JACK B. WEINSTEIN, INDIVIDUAL JUSTICE IN MASS TORT LITIGATION 143 (1995) ("[I]t is close to impossible for one judge (particularly if he or she hopes to keep up with the rest of the caseload) personally to conduct the necessary fact-finding and negotiations, and then to develop, implement, and oversee a complicated ongoing administrative resolution of a mass tort case. Extending the reach of the court, while at the same time keeping all parties and issues concentrated in one forum, requires help.")

(74.) See, e.g., AM. COLLEGE OF TRIAL LAWYERS, MASS TORT LITIGATION MANUAL 83-84 (forthcoming 2005) [hereinafter ACTL MANUAL]; MANUAL FOR COMPLEX LITIGATION (FOURTH), supra note 48, [section] 11.52.

(75.) FED. R. CIV. P. 53 advisory committee's note of 2003.

(76.) FED. R. CIV. P. 53(a)(1)(B)(i) (concerning appointment to hold trial proceedings or to make or recommend findings of fact).

(77.) FED. R. CIV. P. 53 advisory committee's note of 2003.


(79.) Id. at 5.

(80.) William B. Rubenstein, A Transactional Model of Adjudication, 89 GEO. L.J. 371 (2001); Howard M. Erichson, A Typology of Aggregate Settlements, 80 NOTRE DAME L. REV. (forthcoming 2005).

(81.) See Paul D. Rheingold, Ethical Constraints on Aggregated Settlements of Mass-Tort Cases, 31 LOY. L.A. L. REV. 395 (1998) (discussing the common practice of aggregated settlements and noting ethics issues). There is an ethics issue of how an attorney can settle multiple clients' claims when those clients will not be treated "equally." See MODEL RULES OF PROF'L CONDUCT R. 1.8(g) (2002) ("Conflicts of Interest: Current Clients: Specific Rules"); see also MODEL CODE OF PROF'L RESPONSIBILITY DR 5-106 (1983) ("Settling Similar Claims of Clients").

(82.) See supra notes 40-48 and accompanying text.

(83.) See, e.g., Catherine T. Struve, The FDA and the Tort System: Post Marketing Surveillance, Compensation, and the Role of Litigation, 5 YALE J. HEALTH POL'Y L. & ETHICS (forthcoming Summer 2005).

(84.) Some of Judith Resnik's arguments in support of adjudication stem from this idea. See Resnik, supra note 9, at 199 ("Adjudication's proponents in the academy have been a part, sadly, of the story of adjudication's eclipse. First, by overstating the heroic proportions of the job of judging, they have created expectations that the job did not often met [sic].").

(85.) U.S. CONST. art. III, [section] 1.

(86.) With respect to the federal judiciary, the Feeney Amendment, Pub. L. No. 108-21, [section] 401, 117 Stat. 650, 667-76 (2003), which eliminated a statutory requirement that at least three federal judges serve on the U.S. Sentencing Commission, has been characterized by a district court as an unconstitutional violation of separation of powers. United States v. Detwiler, 338 F. Supp. 2d 1166 (D. Or. 2004). Another district court held that the "blacklist" requirement of the Feeney Amendment, which requires that judges who grant downward sentencing departures other than when requested to do so by the prosecutor be immediately reported to the Attorney General and the Senate Judiciary Committee, chills judicial independence and violates separation of powers principles. United States v. Mendoza, No. CR 03-730 DT, 2004 U.S. Dist LEXIS 1449 (C.D. Cal. Jan. 12, 2004).

(87.) See, e.g., Neil A. Lewis, Mixed Results for Bush in Battle over Judges, N.Y. TIMES, Oct. 22, 2004, at A1 (discussing events such as the Bush White House's turn to the conservative Federalist Society as the source for selecting candidates for federal judicial appointment and Democratic Senators' response of seeking to block candidates other than merely those with "egregious faults" because the White House was "trying to push the courts in a conservative direction" in order to achieve the "political benefit of pleasing political conservatives.").

(88.) Breyer Questions His Impartiality in 2000 Election Ruling, ASSOCIATED PRESS, Oct. 26, 2004 (stating that in Justice Breyer's view, judges try to depend on the rule of law, but that "people are great self-kidders"), available at PubArticleSCM.jsp?id=1098737118377.

(89.) The fact that a political actor's actions are motivated by reelection concerns has been shown in the case of House members and is likely to hold true for elected judges as well. See RICHARD F. FENNO, JR., HOME STYLE: HOUSE MEMBERS IN THEIR DISTRICTS 37 (1978) (arguing that House members "try to achieve, in varying combinations, three basic personal goals: reelection, power inside Congress, and good public policy"); RICHARD F. FENNO, JR., CONGRESSMEN IN COMMITTEES 1 (1973) (same, but adding that congressmen are also motivated by interests in setting up careers following their congressional terms and aggrandizing personal gain).

(90.) Emily Heller, Judicial Races Get Meaner, NAT'L L.J., Oct. 25, 2004 (discussing how key interest groups have lined up against each other in fifteen states involving twenty-nine state supreme court judgeships), id=1098217051328; see also Julie Kay, Christian Group's Survey Reveals Judicial Candidates' Opinions, MIAMI DAILY BUS. REV., Oct. 28, 2004 (discussing Florida State Bar Association judicial ethics committee ruling that judicial candidates may announce their views on disputed issues as long as they also stress that they will uphold the law),; Adam Liptak, Judicial Races in Several States Become Partisan Battlegrounds, N.Y. TIMES, Oct. 24, 2004, at A1 (discussing battle over forty supreme court seats in twenty states).

(91.) Richard A. Nagareda, In the Aftermath of the Mass Tort Class Action, 85 GEO. L.J. 295, 346-49 (1996) ("The breast implant litigation provides only one example of the confluence of mass torts and contemporary political controversy. The resolution of claims by military personnel exposed to the defoliant Agent Orange remains intertwined, to this day, with the efforts of the nation as a whole to come to grips with the Vietnam War.").

(92.) See, e.g., Edmund L. Andrews, Bush Puts Social Security at Top of Economic Conference, N.Y. TIMES, Dec. 16, 2004, at A30 (reporting that when opening his campaign for his economic agenda at the "White House Conference on the Economy," President Bush called for ending frivolous lawsuits and "restricting lawsuits brought against corporations," and noting that many panelists had long records of supporting the President's policies); see infra notes 101-04 and 112 (discussing the recent Class Action Fairness Act).

(93.) The "maturity" of a mass tort has been addressed in Shiela Birnbaum, Class Certification--The Exception, Not the Rule, 41 N.Y.L. SCH. L. REV. 347, 348-49 (1997) (noting the problem of premature mass tort class action filings; for example, in the Felbatol litigation, a class action was filed before any individual lawsuits were); Deborah R. Hensler & Mark A. Peterson, Understanding Mass Personal Injury Litigation: A Socio-Legal Analysis, 59 BROOK. L. REV. 961, 1019-30 (1993); Francis McGovern, Resolving Mature Mass Tort Litigation, 69 B.U.L. REV. 659 (1989); Vairo, supra note 44, at 1093-94.

(94.) See, e.g., Liggett Group Inc. v. Engle, 853 So. 2d 434, 442 (Fla. Dist. Ct. App. 2003) (vacating class certification in tobacco litigation in which the jury awarded compensatory damages and $145 billion in punitive damages against tobacco companies), review granted, 873 So. 2d 1222 (Fla. 2004).

(95.) Id. at 469.

(96.) Engle v. Liggett Group, Inc., 873 So. 2d at 1222. Note, however, for the purposes of this Article, that the tobacco industry refused to settle any personal injury cases, obviating the need for a settlement fund of any kind.

(97.) Vairo, supra note 47, at 1564.

(98.) Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997).

(99.) Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (clarifying standards for making summary judgment motions and for granting summary judgment); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (same); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) (same).

(100.) 509 U.S. 579 (1993).

(101.) See infra notes 112-15.

(102.) See Bill Tracking Report, Class Action Fairness Act of 2003, H.R. 1115, 108th Cong., LEXIS 2003 Bill Tracking H.R. 1115.

(103.) See Bill Tracking Report, Class Action Fairness Act of 2005, H.R. 516, 109th Cong., LEXIS 2005 Bill Tracking H.R. 516.

(104.) 151 CONG. REC. S999 (daily ed. Feb. 7, 2005) (statement of Sen. Specter).

(105.) Edward A. Purcell, Jr., Origins of a Social Litigation System, in LITIGATION AND EQUALITY: FEDERAL DIVERSITY JURISDICTION IN INDUSTRIAL AMERICA, 1870-1958, at 99 (1992).

(106.) See Vairo, supra note 47.

(107.) See Kevin M. Clermont & Theodore Eisenberg, Do Case Outcomes Really Reveal Anything About the Legal System? Win Rates and Removal Jurisdiction, 83 CORNELL L. REV. 581 (1998); Kevin M. Clermont & Theodore Eisenberg, Litigation Realities, 88 CORNELL L. REV. 119 (2002). A recently published study by the Federal Judicial Center shows that defense attorneys believe that in class action cases the federal forum is more beneficial to their clients' interests and that they remove cases based on state law to the federal courts for that reason. See THOMAS E. WILLGING & SHANNON R. WHEATMAN, ATTORNEY REPORTS ON THE IMPACT OF AMCHEM AND ORTIZ ON CHOICE OF A FEDERAL OR STATE FORUM IN CLASS ACTION LITIGATION, A REPORT TO THE ADVISORY COMMITTEE ON CIVIL RULES REGARDING IN CASE-BASED SURVEY OF ATTORNEYS 4-5, 7-8, 18, 29-31 (2004). However, the study indicates that the rate of class certification by state and federal judges for the sample involved is virtually the same. The study also reported, though, that federal judges were more than twice as likely to deny class certification. Id. at 4, 8-9.

(108.) See Vairo, supra note 47.

(109.) Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938) (holding that there is no federal general common law).

(110.) Guaranty Trust Co. v. York, 326 U.S. 99, 109 (1945) (stating that the result in a federal court should be the same as in a state court); see also Hanna v. Plumer, 380 U.S. 460, 468 (1965) (discussing the twin aims of Erie doctrine: prevention of forum shopping and equal administration of the law).

(111.) See ACTL MANUAL, supra note 74, at 263-65 (describing so-called "judicial hellholes," sought out by plaintiffs' lawyers, that have judges and juries likely to award large verdicts against corporations).

(112.) The Class Action Fairness Act had been the object of serious congressional attention for the last few years. See Class Action Fairness Act of 2003, H.R. 1115, 108th Cong. (2003). The Senate version became the subject of compromise. See Class Action Fairness Act of 2003, S. 274, 108th Cong (2003). In February 2004, S. 2062, the Class Action Fairness Act of 2004, was introduced in the Senate. See Class Action Fairness Act of 2004, S. 2062, 108th Cong. (2004). Its jurisdictional provisions were substantially similar to the 2003 Senate version. The bill appeared to have stalled, see 150 CONG. REC. S1191 (daily ed. Feb. 11, 2004) (placing S. 2062 on the calendar), but was reintroduced early in the 109th Congress. Class Action Fairness Act of 2005, S. 5, 109th Cong. (2005). It passed the Senate and the House and was signed into law by the President on February 18, 2005. See Class Action Fairness Act of 2005, Pub. L. No. 109-2, 119 Stat. 4 (codified in scattered sections of 28 U.S.C.).

(113.) The Litigation Abuse Reform Act, H.R. 4571, 108th Cong. (2004), passed by the House of Representatives in September 2004, would amend Rule 11 to its earlier, more draconian form, would apply Rule 11 in certain state cases, and would prevent forum shopping. The bill was reintroduced in the House in early 2005. See H.R. 420, 109th Cong. (2005).

(114.) H.R. 420, 109th Cong. (2005).

(115.) See Lonny S. Hoffman, The Trilogy of 2003: Venue, Forum Non Conveniens & Multidistrict Litigation, 24 ADVOCATE 76 (2003) (describing 2003 amendments to the Texas procedural rules).

(116.) Id.

(117.) Samuel J. Rascoff & Richard L. Revesz, The Biases of Risk Tradeoff Analysis: Towards Parity in Environmental and Health-and-Safety Regulation, 69 U. CHI. L. REV. 1763, 1797-98 (2002) (critiquing theory of agency capture pursuant to which a single interest group will capture the regulatory process and successfully impose its views on the captured agency).

(118.) See Fiss, supra note 66, at 1084-85 ("Given the underlying purpose of settlement--to avoid trial--the so-called 'findings' and 'conclusions' are necessarily the products of a bargain between the parties rather than of a trial and an independent judicial judgment.... Even assuming that the consent is freely given and authoritative, the bargain is at best contractual and does not contain the kind of enforcement commitment already embodied in a decree that is the product of a trial and the judgment of a court.").

(119.) See Resnik, Managerial Judges, supra note 50, at 425 ("Transforming the judge from adjudicator to manager substantially expands the opportunities for judges to use--or abuse--their power.").

(120.) See Resnik, supra note 5, at 181 (noting that Article III judges worked with Congress to create a workforce of over four thousand non-Article III auxiliary judges such as magistrate and bankruptcy judges, administrative law judges, and hearing officers) (citing Owen M. Fiss, The Bureaucratization of the Judiciary, 92 YALE L.J. 1442 (1983)).

(121.) See Carrie Menkel-Meadow, From Legal Disputes to Conflict Resolution and Human Problem Solving: Legal Dispute Resolution in a Multidisciplinary Context, 54 J. LEGAL EDUC. 7, 26-29 (2004) (discussing possibilities for creative and innovative problem solving in ADR context); Georgene M. Vairo, Multi-Tort Cases: Cause for More Darkness on the Subject, or a New Role for Federal Common Law?, 54 FORDHAM L. REV. 167 (1985) (arguing that the application of federal common law in mass tort cases leads to fairness and efficiency); cf. Mariano-Florentino Cuellar, Rethinking Regulatory Democracy, 57 ADMIN L. REV. (forthcoming 2005) (demonstrating the impact of private party participation in rulemaking process).

(122.) See Resnik, supra note 5, at 175 n.12; see also John Langbein, What ERISA Means by "Equitable": The Supreme Court Trail of Error in Russel, Mertens, and GreatWest, 103 COLUM. L. REV. 1317 (2003); Daniel J. Meltzer, The Supreme Court's Judicial Passivity, 2002 SUP. CT. REV. 343.

(123.) 527 U.S. 308, 330-35 (1999) (holding that the district court lacked authority to issue a preliminary injunction because such a remedy was historically unavailable from a court of equity; reasoning that various weighty considerations both for and against creating the remedy at issue should be resolved in Congress, and should not be resolved by federal courts).

(124.) 534 U.S. 204, 221 (2002) (refusing to allow legal relief where Congress expressly permitted only equitable relief).

(125.) Judith Resnik, Constricting Remedies: The Rehnquist Judiciary, Congress, and Federal Power, 78 IND. L.J. 223, 224 (2003).

(126.) Id.

(127.) See Pether, supra note 70.

(128.) Russell B. Korobkin, The Role of Law in Settlement (UCLA Sch. of Law Research Paper No. 04-17, Sept. 2004).

(129.) See Robert A. Leflar, Choice-Influencing Considerations in Conflicts Law, 41 N.Y.U.L. REV. 267, 270, 294-95, 325-27 (1966) (emphasizing in choice of law analysis the application of the better rule of law, and arguing that courts necessarily weighed substantive content in their role as creators of the common law); see also Stanley E. Cox, Applying the Best Law, 52 ARK. L. REV. 9, 18 (1999) ("Justice was best neutrally achieved by applying the best rule possible to the case. Application of such a rule would further the parties' expectations that courts would deal with them justly."). See generally Vairo, supra note 121.

(130.) See Stephan Landsman, A Chance to be Heard: Thoughts About Schedules, Caps, and Collateral Source Deduction in the September 11th Victim Compensation Fund, 53 DEPAUL L. REV. 393 (2003) (discussing collateral source rules considered by Special Master Kenneth Feinberg); see also Martha Chamallas, The September 11th Victim Compensation Fund: Rethinking the Damages Element in Injury Law, 71 TENN. L. REV. 51 (2003); Deborah R. Hensler, Money Talks: Searching for Justice Through Compensation for Personal Injury and Death, 53 DEPAUL L. REV. 417, 449 (2003) (discussing the need to provide rules to cover the particular circumstances of each victim, including domestic partners); David Hechler, Intensive Care, NAT'L L.J., July 1, 2004, newswire_article.j sp?id=1088439689003.

(131.) Colin S. Diver, The Optimal Precision of Administrative Rules, 93 YALE L.J. 65 (1983); Louis Kaplow, Rules Versus Standards: An Economic Analysis, 42 DUKE L.J. 557 (1992); Russell B. Korobkin, Behavioral Analysis and Legal Form: Rules vs. Standards Revisited, 79 OR. L. REV. 23 (2000).

(132.) See, e.g., Symposium, After Disaster: The September 11th Compensation Fund and the Future of Civil Justice, 53 DEPAUL L. REV. 205 (2003) (discussing the appointment of Special Master Kenneth Feinberg).

(133.) See Peter H. Schuck, The Role of Judges in Settling Complex Cases: The Agent Orange Example, 53 U. CHI. L. REV. 337, 344-46, 362 (1986).

(134.) Schuck, supra note 56, at 987 (1995) (describing how many claims facilities are based on an administrative model); Schuck, supra note 133 (same). All administrative agencies perform some discretionary functions. The question is one of degree.

(135.) In re "Agent Orange" Prod. Liab. Litig., 689 F. Supp. 1250, 1257-58 (E.D.N.Y. 1988).

(136.) Linda S. Mullenix & Kristen B. Stewart, The September 11th Victim Compensation Fund: Fund Approaches to Resolving Mass Tort Litigation, 9 CONN. INS. L.J. 121, 149-50 (2003).

(137.) See Vairo, Paradigm Lost, supra note 2.

(138.) See George L. Priest, The Problematic Structure of the September 11th Victim Compensation Fund, 53 DEPAUL L. REV. 527, 527 (2003) (noting that although the fund has generated "remarkable" controversy, the "general consensus [is] that ... Special Master Kenneth Feinberg ... has executed his duties, as much as he possibly can, with good judgment, commitment, and dedication to the victims whom the Fund aspires to compensate"); Vairo, Rhetoric, supra note 2, at 141-45 (noting positive reactions to the Dalkon Shield Claimants Trust).

(139.) See generally Michael G. Gordon, Debate Lingering on the Decision to Dissolve the Iraqi Military, N.Y. TIMES, Oct. 21, 2004, at Al (discussing Bremer's decision to disband Iraqi military immediately upon the "catastrophic success" of the shock and awe campaign, which overruled U.S. military generals' plan to use Iraqi soldiers to help rebuild Iraq).

(140.) See, e.g., Vairo, Paradigm Lost, supra note 2, at 651-54, 656-58 ("Commonly discussed general complaints include a lack of willingness to compromise, a failure to reveal information concerning the trust's evaluation of claims, an insensitivity to the behavioral needs of claimants, and an overemphasis on administrative convenience."); see also Carrie Menkel-Meadow, Taking the Mass out of Mass Torts: Reflections of a Dalkon Shield Arbitrator on Alternative Dispute Resolution, Judging, Neutrality, Gender, and Process, 31 LOY. L.A.L. REV. 513 (1998).

(141.) See Priest, supra note 138.

(142.) See Vairo, Rhetoric, supra note 2. For further discussion of the meaning of equality, see William B. Rubenstein, The Concept of Equality in Civil Procedure, 23 CARDOZO L. REV. 1865, 1893-96 (2002) ("Outcome equality is important because it is evidence of a consistent, and hence legitimate, dispute resolution system. Equality is desired not to guard against caste-like practices, but rather to assist in the project of achieving acceptable adjudicative outcomes.").

(143.) Id.

(144.) Id.

(145.) Francis E. McGovern, The What and Why of Claims Resolution Facilities, 57 STAN. L. REV. 1361, 1375-79 (2005).

(146.) Id. at 1374.

(147.) WEINSTEIN, supra note 73, at 109-10 (noting that the cadre of special masters is too limited, which can lead to conflicts of interest because the same lawyers are involved in each case, and suggesting a code of ethics to deal with repeat player issues).

(148.) WILLGING ET AL., supra note 78.

(149.) See generally 9 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE ch. 53 (3d ed. 1997).

(150.) WILLGING ET AL., supra note 78.

(151.) Silberman, supra note 4, at 2154 (footnotes omitted).

(152.) See John C. Coffee, Jr., Class Wars: The Dilemma of the Mass Tort Class Action, 95 COLUM. L. REV. 1343, 1365 (1995); Howard M. Erichson, Informal Aggregation: Procedural and Ethical Implications of Coordination Among Counsel in Related Lawsuits, 50 DUKE L.J. 381 (2000); Ronald J. Gilson & Robert H. Mnookin, Disputing Through Agents: Cooperation and Conflict Between Lawyers in Litigation, 94 COLUM. L. REV. 509, 513 (1994) (modeling litigation as a prisoners' dilemma and noting the possible divergence of interest between lawyer and client when the lawyer is playing a repeat game while the client is a one-shot player).

(153.) In re Kensington Int'l, Ltd., 368 F.3d 289 (3d Cir. 2004).

(154.) Id. at 307 n.17.

(155.) ACTL MANUAL, supra note 74, at 83-84.

(156.) Schuck, supra note 56, at 952-53; see also Kensington Int'l, 368 F.3d at 289.

(157.) Silberman, supra note 4, at 2154; cf. Cheney v. United States Dist. Court, 124 S. Ct. 2576 (2004) (involving question of whether nongovernmental employees were de facto members of a governmental committee established by the President).

(158.) One of the most prominent of these mass tort masters, Francis McGovern, has written widely about his experiences. See, e.g., McGovern, supra note 93; Francis McGovern, The Alabama DDT Settlement Fund, LAW & CONTEMP. PROBS., Autumn 1990, at 61; Francis McGovern, Toward a Functional Approach for Managing Complex Litigation, 53 U. CHI. L. REV. 440 (1986). Yet he has been criticized. See Editorial, St. Francis of Asbestos, WALL ST. J., June 15, 2004, at A14; see also Baltimore Defendants Concerned over Consolidation, MEALEY'S LITIG. REP.: ASBESTOS, May 4, 1990, LexisNexis Library, Mealey's Litigation Report: Asbestos File ("Defense sources indicated a displeasure over the appointment of a special master for such duties.... 'One wonders why you need a special master to organize a trial,' said a defense source. 'I thought Judge Levin was supposed to be the 'Asbestos Guru.'"). McGovern was appointed as a special master over the objection of some parties. See Baltimore Judge Refuses to Recuse Himself, MEALEY'S LITIG. REP.: ASBESTOS, June 1, 1990, LexisNexis Library, Mealey's Litigation Report: Asbestos File ("The defendants had moved in opposition to the appointment of Francis McGovern as special master. Judge Levin denied the motion to withdraw McGovern from the position and denied defendants' motion to ask McGovern to recuse himself.... 'I feel very strongly that this is an unfair procedure,' said a defense source who believed that negotiations in the city's alternative dispute resolution (ADR) plan may have been irreparably damaged. 'When all the pressure is on one side, it doesn't give the plaintiffs any incentive to negotiate in good faith.'"). Ken Feinberg also has been attacked. See Motley Tells Feinberg to "Remember the Alamo," MEALEY'S LITIG. REP.: ASBESTOS, Jan. 4, 1991, LexisNexis Library, Mealey's Litigation Report: Asbestos File (reporting on plaintiff attorney Ron Motley's response to Settlement Master Kenneth Feinberg's quote in a Dec. 13, 1990 New York Times article with a "four-page history lesson on the Alamo"; Feinberg reportedly had said that the In Re Eagle Picher asbestos bankruptcy litigation settlement talks and the controversy surrounding them represented "the plaintiff's lawyer's Alamo." Motley responded by reminding Feinberg that the defenders of the Alamo ultimately triumphed because their cause was just, and that their courage and determination were an inspiration).

(159.) Kensington Int'l, 368 F.3d at 307.

(160.) See Sanjai Bhagat & Bernard Black, The Non-Correlation Between Board Independence and Long-Term Firm Performance, 27 IOWA J. CORP. L. 231 (2002); Laura Linn, The Effectiveness of Outside Directors as a Corporate Governance Mechanism: Theories and Evidence, 90 NW. U. L. REV. 898, 961-62, 966 (1996).

(161.) BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 176-77 (1921) (observing, while referring to the process of judicial decisionmaking, that "out of the attrition of diverse minds there is beaten something which has a constancy and uniformity and average value greater than its component elements"); Harry T. Edwards, The Effects of Collegiality on Judicial Decision Making, 151 U. PA. L. REV. 1639 (2003) (recognizing that constructive decisionmaking is often best achieved "by allowing judges of differing perspectives and philosophies to communicate with, listen to, and ultimately influence one another").

(162.) See generally Cass R. Sunstein et al., Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation, 90 VA. L. REV. 301, 308 (2004) ("We also find evidence within the federal judiciary of 'group polarization,' by which like-minded people move toward a more extreme position in the same direction as their predeliberation views. If all-Republican panels are overwhelmingly likely to strike down campaign finance regulation, and if all-Democratic panels are overwhelmingly likely to uphold affirmative action programs, group polarization is likely to be a reason. Finally, we offer indirect evidence of a 'whistleblower effect': A single judge of another party, while likely to be affected by the fact that he is isolated, might also influence other judges on the panel, at least where the panel would otherwise fail to follow existing law.").

(163.) Lawrence B. Solum, Procedural Justice, 78 S. CAL. L. REV. 181, 275-77 (2004).

(164.) See, e.g., James J. Brudney, Foreseeing Greatness? Measurable Performance Criteria and the Selection of Supreme Court Justices, 32 FLA. ST. U. L. REV. (forthcoming 2005) (proposing consideration of additional criteria such as collegiality and career diversity); Stephen Choi & Mitu Gulati, A Tournament of Judges?, 92 CAL. L. REV. 299 (2004) (proposing that a tournament of court of appeals judges should govern the selection of Supreme Court Justices, based on objective considerations of judicial merit such as the quantity and quality, based on relative citation rates, of their judicial opinions).

(165.) See CARDOZO, supra note 161, at 177.

(166.) Vairo, Paradigm Lost, supra note 2, at 637-38 (discussing DS Trust's first operating principle: "Treat all claimants fairly and equally, always focusing on the best interests of claimants collectively instead of on the interests of a particular claimant or group of claimants").

(167.) Id. at 656-58.

(168.) See In re A.H. Robins Co., 880 F.2d 769, 771-76 (4th Cir. 1989) (affirming the district court's broad power to supervise the trustees in matters such as appointment and fees of professionals, but noting that the district court did not have the power to interfere with the "day to day" operations of the DS Trust).

(169.) Id.

(170.) See Vairo, supra note 121.

(171.) Vairo, Paradigm Lost, supra note 2, at 634-36 & n.71.

(172.) Id. at 632-33. Ken Feinberg served during the first few years of the DS Trust's existence.

(173.) Id.

(174.) Id. at 634 (referring to Charles Goetz, a professor at the University of Virginia).

(175.) Id. at 641.

(176.) Id. at 641-42 (describing our best and final offer/no negotiation policy).

(177.) Id. at 646; see also Vairo, Rhetoric, supra note 2, at 146-47.

(178.) Vairo, Rhetoric, supra note 2, at 153-56.

(179.) Vairo, Paradigm Lost, supra note 2, at 660 (discussing initial resistance to DS Trust policies).

(180.) I did not apply for my position, but can speculate that my appointment came as a result of knowing persons involved in the case, including the judge. Some commentators have written that the DS trustees, and I in particular, were somehow beholden to the district court. See RICHARD B. SOBOL, BENDING THE LAW: THE STORY OF THE DALKON SHIELD BANKRUPTCY 339 (1991). Such criticism is inaccurate. As discussed above, the DS trustees acted independently, and acted in what they perceived to be the best interests of the claimants as a whole.

(181.) Since serving on the DS Trust, I have served as an expert in the breast implant litigation, see In re Dow Corning Corp., 287 B.R. 396, 412 (E.D. Mich. 2002), testifying at the confirmation hearing based on my experience in the A.H. Robins case. Although I have had the opportunity to participate again in the mass tort arena, I can hardly be characterized as a repeat player.

Georgene Vairo, Professor of Law and William M. Rains Fellow, Loyola Law School, Los Angeles. The author wishes to extend her thanks to Bile Clark, Rick Hasen, Rick Johnson, Rob Kar, Katie Pratt, and Wendy Trachte-Huber for their insightful comments, and to Amarsinh Chauhan, Loyola Law School, Class of 2006, for his helpful research assistance. Additionally, the author thanks Roger Findley, David Leonard, Therese Maynard, John Nockleby, Ted Seto, Fred Tung, and Lauren Willis for participating at the Loyola Faculty Workshop at which she presented this Article.
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Title Annotation:The Civil Trial: Adaptation and Alternatives
Author:Vairo, Georgene
Publication:Stanford Law Review
Date:Apr 1, 2005
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