My colleague Morris Ratner, who writes about complex litigation and ethics, has written an important new article, “Class Conflicts,” forthcoming in Washington Law Review. The article offers a detailed descriptive account of how lower courts have managed intraclass conflicts in class-action settlements after Amchem and Ortiz, a pair of Supreme Court cases from the 1990s reiterating the importance of mediating intraclass conflicts.
The issue is an important one. Many commentators have chastised the Supreme Court’s opinions for elevating formalism over pragmatism and for stymying productive and efficient resolution of intractable mass-tort litigation, such as the asbestos crisis of the 1990s. In the same vein, the Advisory Committee on Civil Rules has several times attempted—but failed—to amend Rule 23 to allow for “settlement certification” under standards more lenient than those currently existing in Rule 23. These positions rest, in part, on the assumption that the lower courts are faithfully and widely applying Amchem and Ortiz to make class settlement more difficult.
Professor Ratner offers a somewhat contradictory account. Using the BP oil spill and the NFL concussion injury litigations as case studies, he shows that, rather than faithful adherence, lower courts have hollowed the foundations of Amchem and Ortiz. Lower courts have done so in several ways, including: by confining the holdings of Amchem and Ortiz to their facts, by redefining what conflicts are meaningful for certification, by relying on alternative assurances of fairness that obscure class conflicts, and by putting utilitarian goals ahead of formalist goals.
For those who think lower courts rotely follow the Supreme Court, Professor Ratner’s findings will be a surprising reality check. For those who have seen such defiance-from-below before—in pleadings, discovery, and summary judgment—Professor Ratner’s report is confirmation that lower courts are institutionally different from, and quite independent of, the nation’s highest court. Professor Ratner’s story from the trenches of Rule 23 thus informs our understanding of lower courts as agents in a collaborative litigation system, in which judges and lawyers act as regulators, managers, innovators, and, occasionally, insubordinates.