Appendix C: Mass Torts Problems & Proposals
Because the “existing exception for class actions” is found in Rule 23, the argument has
some circularity, especially given the Court’s Amchem ruling that Rule 23 permits settlement
to be taken into account in assessing manageability. To be consistent with its prior
REA cases, the Court’s ruling in Amchem may have meant that any impairment of substantive
rights to litigate was seen as incidental.637 Stated conservatively, the Court’s ruling
means that it did not reject the “arguably procedural” test that preceded the 1988
amendments to the REA; otherwise, “it is likely that any rule-created distinction between
the certification standard for litigation classes and settlement classes would not satisfy the
REA.”638
Other commentators read the judiciary’s authority under the REA much more restrictively.
Writing without the benefit of the Amchem decision, Professor Paul Carrington
and Derek Apanovitch assert that the Advisory Committee on Civil Rules’ proposal to
recognize settlement classes in a new Rule 23(b)(4) clearly exceeds the judiciary’s authority
under Article III of the United States Constitution and the REA.639 The authors argue
that the proposed rule “has nothing to do with the Article III mission of deciding cases or
controversies, but is instead a means of promoting and endorsing putative private dispositions
by lending them the imprimatur of the court, thus garbing contracts in the dress
of judgments.”640 Carrington and Apanovitch detail their views of “at least ten substantive
consequences confronted by the architects of global peace in mass torts.”641 They
recommend that the rules committee direct its settlement class proposal to Congress rather
than the Court, closing with the chilling comment that “If it is tempted to disregard this
advice, the analogy to the French aristocracy’s doom is worthy of the Committee’s attention.”
642
637. See id.
638. Id. at 2311. After explicating a plausible argument that Amchem supports an expansive view of
Congress’s delegation of rule-making authority of the courts, the note calls for the Court or Congress to
“provide much needed clarity on this murky issue.” Id.
639. Paul D. Carrington & Derek P. Apanovitch, The Constitutional Limits of Judicial Rulemaking: The
Illegitimacy of Mass-Tort Settlements Negotiated Under Federal Rule 23, 39 Ariz. L. Rev. 461 (1997).
640. Id. at 463.
641. Id. at 464. Those consequences range from the rights of state governments to enact and enforce their
own tort laws and standards and conflicts of law rules, id. at 464–65, to the effects of recognizing a settlement
class on attorney-client relationships, id. at 466–68, to the relative value of individual settlement amounts, id.
at 469–71, and the right of an individual to control a legal claim, id. at 472.
642. Id. at 495, citing Stephen P. Burbank, Proposals to Amend Rule 68—Time to Abandon Ship, 19 U.
Mich. J.L. Reform 425, 432 (1986).
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