Managing Mass Tort Class Actions: Judicial Politics and Rulemaking in Three Acts

Judges take part in a variety of non-adjudicative tasks that shape the structure of litigation. In addition to their managerial functions, judges sit as administrative heads of court. They participate in civil justice reform projects and develop procedures for criminal and civil trials. What norms and principles ought to guide judges in this other work?

In their casework we expect judges to be neutral and fair, setting aside politics and rationally following the law. Indeed, this article will demonstrate that there is good reason to insist on these qualities in both judges’ case-related and broader court-related reform activities. To test this proposition, this article examines the work of judges who sat on the Advisory Committee for Civil Rules, the committee that evaluates and makes recommendations for rule amendments to the Federal Rules of Civil Procedure. In particular, this Article reviews the committee’s nearly thirty-year effort to make rules for approving settlements in mass tort class actions.

The review reveals politics and competition not only between judges and Congress for the authority to design rules of procedure, but also points to a lesser explored phenomenon, of competition between judges of the different levels of court.