Although most current proposals for consolidation adjudication of mass tort cases call for these cases to be heard by district courts, the federal forum is unsuitable for two reasons. First, under the Erie doctrine, federal courts must apply state law, which they cannot develop sensibly nor even predict accurately. Creating national mass tort law would be unwise because important federalism interests would be frustrated. Second, federal courts would better spend their scarce time on federal constitutional and statutory cases in which they have a comparative advantage over state tribunals.
The proponents of federal consolidation have failed to examine the premise of their proposed reforms: that consolidation must take place in a federal, rather than a state, forum. This Article examines the state forum. It submits that the doctrinal and practical problems to state court consolidation either have been eliminated or, with modest reforms, can be solved. It concludes that state court is the forum with superior potential for achieving efficiency gains in the adjudication of mass torts while not disrupting important political and judicial structures.
Mark C. Weber,
Complex Litigation and the State Courts: Constitutional and Practical Advantages of the State Forum over the Federal Forum in Mass Tort Cases,
21 Hastings Bus L.J. 215
Available at: https://repository.uchastings.edu/hastings_constitutional_law_quaterly/vol21/iss2/2