NewYorkUniversity
LawReview

Symposium Articles

1996

Choice of Law in Complex Litigation

Nearly all proceduralists agree that all the claims in a complex case should be decided under a single substantive law or, at the very least, under a uniform choice-of-law rule. In this paper, Professor Kramer challenges the assumptions at the foundation of that consensus. In so doing, he confronts two myths of late-twentieth century procedure: that the sort of procedural maneuvers used to circumvent unambiguous Supreme Court precedents precluding federal courts from creating choice-of-law rules are legitimate; and that the unusual nature of complex litigation justifies such measures. Professor Kramer exposes the fallacies underlying the first premise then presents historical and normative arguments against the second. He questions both the principle that the parties in complex litigation are similarly situated with respect to the applicable law and the notion that adjudicating such litigation under more than one law is unmanageable.

Foreword

Federal Class Actions After 30 Years

Does the experience of thirty years suggest a need to reexamine the legal framework for class action litigation? Consider some of the developments during the intervening period that might have been beyond the prescience of the framers of the current version of Rule 23:

  • the use of the (b)(1) category to certify nationwide classes without notice or opt-out rights because of a concern that a defendant's assets would be insufficient to satisfy all projected claims;
  • the availability of individualized recoveries in civil rights litigation also seeking classwide injunctive relief under the (b)(2) category, again without notice or opt-out rights;
  • the enactment in 1968 of the Multidistrict Litigation Act, enabling federal courts to consolidate suits across the country into one proceediing for pretrial purposes, including motions for summary judgment and nationwide settlements;
  • the possible certification of (b)(3) class actions not only in single-event mass-disaster cases but also in "mass torts" like asbestos, silicone gel breast implants, and nicotine-dependency that often present a range of claims arising from exposure to toxic substances, including claims of present injury and claims of enhanced risk unaccompanied by present symptoms;
  • the emergence of settlement-only class actions, often involving in-kind relief rather than cash distributions to class members;
  • the growing perception on the part of federal judges that burgeoning dockets require a greater receptivity to techniques for aggregating claims and consolidating lawsuits even in the "mass tort" context; and
  • the development of alternatives to federal class actions such as separate suits utilizing the doctrine of offensive nonmutual issue preclusion, and state-court actions providing a nationwide forum for class claims.

The papers in this volume provide a valuable starting point for assessing whether these (and other) changes in the legal landscape make out a case for reform.

Rule 23: Challenges to the Rulemaking Process

Three decades have elapsed since Rule 23 of the Federal Rules of Civil Procedure last underwent revision. Taking a cue from proposed amendments prepared by the Civil Rules Advisory Committee, Professor Cooper asks whether now is the appropriate time to revise Rule 23. In this Article, he identifies three potential “big changes” to the Rule: substantially curtailing class actions; accommodating the needs of mass-tort actions; and recognizing the class as an entity, distinct from Its representatives. After outlining and critiquing the Advisory Committee’s draft, Professor Cooper raises a host of questions about many aspects of Rule 23 and suggests that perhaps we do not know enough about the operation of the current version of the Rule to undertake effective reform. Although he cautions against revision of Rule 23 before we obtain answers to some of the questions posed, Professor Cooper remains optimistic that the Rule can be improved in some ways without great cost.