ABSTRACT :: This Article describes the transfer of power to regulate tortfeasors from the legislature to private parties through the medium of the court system and proposes that instead of privatizing mass torts administration courts should humanize it. The federal courts are faced with large numbers of claims arising out of torts, civil rights violations, and consumer fraud. Federal judges, concerned about the transformation of their role from adjudicators to administrators, have applied various narrowing legal doctrines to avoid administering mass torts. Because courts have restricted procedures for resolving mass claims, litigants have resorted to private ordering through settlement.
The alternative to private settlement is bureaucratic administration of complex litigation. There are legitimate reasons to fear this outcome, such as concerns about litigants becoming alienated, capture by special interests, and erroneous results. These same concerns about bureaucracy animated the debate over the rise of administrative agencies in the last century. But bureaucratic administration has its virtues and serves the broader democratic goal of access to justice. When judges avoid mass claim administration, they are not deferring to the legislature. Instead, they are ceding power to private actors. To replace private ordering, courts need a method for administering large numbers of claims that is both humanized and humanizing. Such a bureaucracy should be open to public scrutiny and understood as an important, sophisticated judicial function intended to realize the widely recognized values of the judicial system.
November 2014, Vol. 66, No. 6
Lily Kahng, The Taxation of Intellectual Capital