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Procedural versus Substantive Controls of Mass Tort Class Actions

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  • Priest, George L
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    Abstract

    Class certification in a mass tort case confers extraordinary negotiating power even where the underlying claim is meritless. This power stems from the prosper that claims of a large-numbered class might reach a jury that might render a larger aggregate judgment under our vastly looser tort law standards. The power is so extreme that all mass tort claims certified as classes appear to settle, rather than litigate to judgment. Recommendations for class action reform have been solely procedural since Rule 23 has been implemented without substantive review of the underlying claim. This article shows that recent reform efforts in fact attempt to Impose substantive controls on mass tort class actions through procedural means, efforts that necessarily will remain inadequate. The various problems attending mass tort class actions can only be effectively addressed if courts are given power to substantively review the underlying merits of a claim prior to class certification. Copyright 1997 by the University of Chicago.

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    Bibliographic Info

    Article provided by University of Chicago Press in its journal Journal of Legal Studies.

    Volume (Year): 26 (1997)
    Issue (Month): 2 (June)
    Pages: 521-73

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    Handle: RePEc:ucp:jlstud:v:26:y:1997:i:2:p:521-73

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    Web page: http://www.journals.uchicago.edu/JLS/

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    Cited by:
    1. Hans-Bernd Schaefer, 2000. "The Bundling of Similar Interests in Litigation. The Incentives for Class Action and Legal Actions taken by Associations," European Journal of Law and Economics, Springer, vol. 9(3), pages 183-213, May.
    2. Heaton, J.B., 2005. "Settlement Pressure," International Review of Law and Economics, Elsevier, vol. 25(2), pages 264-275, June.
    3. Michelle J. White, 2002. "Explaining the Flood of Asbestos Litigation: Consolidation, Bifurcation, and Bouquet Trials," NBER Working Papers 9362, National Bureau of Economic Research, Inc.
    4. Schwartz, Warren F., 1999. "Long Shot Class Actions," Berkeley Olin Program in Law & Economics, Working Paper Series qt7fv8k94q, Berkeley Olin Program in Law & Economics.

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