Jack B. Weinstein    

Dear Professor Burch:

     I enjoyed your A New Way Forward.  Your views about ways to deal with mass torts—as well as massive civil rights, discrimination, and institutional abuses—largely accord with my own.  Below are brief additional thoughts.

Gerard N. Magliocca

The Congress . . . on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments . . . . 
          Article V of the United States Constitution

The threat is stronger than the execution. 
          Chess aphorism

     Liberals and conservatives are sharply divided about how the Constitution shoulfd be interpreted, but one thing they do agree on is that pursuing their goals through the amendment process set forth in Article Five would be a waste of time.  The reasoning behind this conclusion is straightforward—it is just too hard to get the required supermajorities.  Congress has not sent an amendment to the states since the 1970s, and that textual silence coincides with the emergence of increasingly complex (and, at times, incomprehensible) interpretive theories that try to justify desirable change without an amendment.  Perhaps Article Five, like the Guarantee Clause, is now just one of the many federal constitutional clauses that are no longer operative. 
     This Essay challenges the view that Article Five is not a practical device for changing constitutional law by focusing on the power of two-thirds of the state legislatures to summon a successor to the 1787 Philadelphia Convention.  Achieving reform through a new convention is basically a fantasy because everybody (except for Sandy Levinson and a few others) is terrified by what may emerge.  Nevertheless, the process of calling for such a conclave could be a powerful tool for mobilizing support and influencing the Justices, in part because the threat posed by a new convention is so unclear.  While there is now keen scholarly interest in how social movements reshape the constitutional culture by changing views and putting different judges on the bench, not enough attention is given to how direct appeals to Article Five can influence Congress and the Court. 
     Putting federal constitutional questions to the voters through state elections or referenda on a convention petition would enhance democratic participation in a positive fashion.
   During the last few election cycles, both parties sought to energize supporters by placing enticing state law initiatives (e.g., banning same-sex marriage, raising the minimum wage) on the ballot in key states.  This coordination between national campaigns and local elections might strike some as an abuse of federalism, but in an Article Five context it is a perfectly appropriate way of structuring a debate on vital issues.  Due to the intense interest that surrounds many constitutional questions, both parties stand to reap significant benefits (depending on the state or question involved) in higher turnout by using the petition process.  Similar decisions on a given issue across a number of states would also send a clear signal about the wishes of the electorate; a signal that history shows may force Congress’s hand before a bandwagon for a new convention becomes irresistible.  In other words, Article Five can generate more involvement by citizens in constitutional law, which is contrary to the usual reading of that text as the ultimate barrier to popular opinion.
     Furthermore, a substantial number of state petitions for a new convention should—consistent with Supreme Court precedent—be considered persuasive authority in some constitutional cases.  In a series of decisions involving the death penalty and the Due Process Clause, the Justices have looked to the actions of state legislatures for interpretive guidance on contemporary values.  There is no reason why calls for a convention by those same legislatures should be treated any differently.   Formal reasons aside, the Court is just as likely as Congress to feel the heat from a looming convention and revise its views if enough states send a signal that a certain decision was erroneous.  In this sense, the threat of a convention may indeed be stronger than its execution.
     In this Essay, Part I reviews prior attempts to use the Article Five petition procedure and shows that, when enough state legislatures join the cause, Congress usually provides a remedy to halt the march to a convention.  Part II looks at how putting federal constitutional issues before the voters in state races can increase the quality and quantity of citizen participation.  Part III explains why a critical mass of state petitions should be taken into account by courts when they are faced with related constitutional issues.   

Elizabeth Chamblee Burch

     Mass tort litigation is rife with trade-offs.  For instance, plaintiffs’ attorneys need to amass clients to achieve economies of scale and bring effective litigation, but an inventory of clients creates an attenuated attorney-client relationship.  That nontraditional relationship tends to make clients ineffective monitors because they have little substantive input over how their attorney handles their case.  Plus, attorneys must focus on achieving the best result for their clients in the aggregate.  This breeds standard collective action problems including conflicts between the self-interest of the group members and the group as a whole.
     When large-scale litigation proceeds outside of formal Rule 23 class certification—as is frequently the case after the Class Action Fairness Act—it lacks the judicial quality control measures that class certification affords.  Those measures include appointing class counsel, ensuring a fair settlement, and authorizing attorneys’ fees.  Without such measures, the trade-offs, tensions, and problems multiply.  Broadly conceived, these problems fall into three categories: agency problems between attorneys and their clients, group problems between plaintiffs and other plaintiffs, and competition problems between plaintiffs’ attorneys and other plaintiffs’ attorneys.  At the core of these problems lies the principal tension, the tension between efficiently resolving mass litigation to maximize social welfare on one hand, and aiming to afford individual justice to litigants on the other.  Put differently, where we draw the line and what we emphasize in debating these trade-offs largely depends on whether we value individual justice or welfare maximization.
     Judge Jack Weinstein highlights this tension in his Cardozo De Novo article, Preliminary Reflections on Administration of Complex Litigations.  In reading his Article, two things struck me: (1) the extent to which we perceive welfare maximization and individual justice as a dichotomy and rely on one perspective to explain and justify aggregation procedures, and (2) the need for judicial flexibility and creativity in approaching large-scale litigation, particularly in nonclass aggregation.  As to the first point, entrenchment in these two perspectives has led scholars down what are now well-trodden paths to familiar debates.  But the very persistence of these debates indicates somewhat of a stalemate rather than a solution.  Accordingly, in my most recent article, Litigating Groups, I argued for a third approach derived from moral and political philosophy, as well as social psychology, that focuses on inclusion within the relevant community.  This alternative theoretical framework identifies an important potential source for group unity: group members’ beliefs regarding their obligations to other group members.  It is through implementing this new approach that I address the second aspect of Judge Weinstein’s article, the need for creative handling.
     This brief Response thus divides into two parts.  Part I addresses the tension that Judge Weinstein observes in his opening paragraphs between “the somewhat academic search for perfection in achieving due process, development of substantive rules of law, and the court’s decision to meet the guideline of Rule One of the Federal Rules of Civil Procedure,” which requires “just, speedy, and inexpensive determination of every action.”  Rather than addressing this tension through either traditional lens, Part I sets forth the theory and rationale behind an alternative “group responsibility” approach to nonclass aggregation.  It provides a condensed, easily accessible excerpt of the more extensive theoretical framework developed in Litigating Groups.
     Part II responds to Judge Weinstein’s use of alternative judicial procedures, which he highlights with examples from Agent Orange, Asbestos, Diethylstilbestrol (DES), Tobacco, Breast Implants, Guns, Zyprexa, and the New York Staten Island Ferry case.  By employing creative approaches, advancing equitable concepts used by medieval institutions, and tailoring his methods to fit the unique aspects of each case, Judge Weinstein worked both with and without Rule 23.  Drawing on similar equitable concepts and, in many ways, coming full circle to the medieval picture of the “community of the vil” painted by Stephen Yeazell, Part II provides preliminary details on implementing the theory described in Part I.  

Jack B. Weinstein

I. Introduction—Efficiencies and Formal Legal Objectives in Deciding Cases Involving Injuries to Many People

Having been invited to briefly summarize my view of the federal courts’ appropriate role in bringing mass litigation to resolution as quickly and with as few transactional costs as possible while allowing reasonable satisfaction to the litigants and the public weal, I thought it useful to touch upon some of my relevant cases.
There is a tension between the somewhat academic search for perfection in achieving due process, development of substantive rules of law, and the court’s decision to meet the guideline of Rule One of the Federal Rules of Civil Procedure—that the rulings governing “procedure in all civil actions and proceedings . . . should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding”—in the hurly-burly of modern legal controversies. Two examples of the discussion about this tension are Fordham Law School’s symposium on Owen M. Fiss’s law review article, Against Settlement, and the paper recently presented at Cardozo Law School by Charles Silver and Geoffrey P. Miller, The Quasi-Class Action Method of Managing Multi-District Litigations: Problems and a Proposal.
The problem of individual justice in disputes involving large masses of people is endemic in a huge heterogeneous population such as ours, where most people claiming to be injured are not in direct contact with those they believe have caused them harm. Legislative, judicial, and administrative mechanisms, and the informal and formal practices of many non-governmental organizations, come into play in response to mass injuries. Examples abound.