“The efficacy of tort law in the United States has been widely criticized by academics and judges. In the mass tort context, a great deal of criticism has focused on the inefficiencies created by individual claim autonomy – the notion that every person is entitled to his or her own day in court. Attempts to individually adjudicate mass tort cases, such as asbestos and other mass-exposure cases, have clogged court dockets and substantially burdened the civil justice system. Some scholars argue that the process of individually litigating mass tort claims and allowance of opt-out rights in class actions lead to suboptimal investment by plaintiffs. Further, the concentrated interests of mass tort defendants – who may expect numerous similar suits – endow them with an “asymmetric scale advantage” to invest in litigation. On the other hand, defendants are forced to re-litigate issues across multiple jurisdictions, risking inconsistent judgments, facing prolonged uncertainty, and incurring ever-growing legal expenses. Similar and overlapping issues, such as design defect and failure to warn, have motivated courts to attempt aggregation of mass tort cases into class actions. Yet these attempts have been frustrated by the strong presumption in American jurisprudence that every individual has a right to a day in court.
In the face of academic criticism and judicial pleas for help, others support individual claim autonomy as a means to preserve the notion of corrective justice. Rather than focus on the efficacy of tort law at serving societal functions, corrective justice proponents often argue tort law is inherently self-justifying, which, of course, begs the question: “Why does tort law exist?”. In addressing that question, this Article examines the political philosophy of John Locke and argues that legal formalism is necessary for restraining government and instilling the rule of law but that the particular form of law adopted by a jurisdiction should reflect society’s substantive policy goals. The law’s form should reflect its function.
Part II of this Article provides an overview of America’s mass tort debate. Part III proceeds to defend rule-of-law formalism in so far as it serves society’s needs but rejects arguments for retaining certain legal formalities merely for tradition’s sake. Part IV discuses the political philosophy of John Locke and reveals Lockean political philosophy’s implications for the relationship between form and function in the law in general and the mass tort problem in particular.
Jeffrey C Sindelar, Jr, ‘Of Form and Function: Lockean Political Philosophy and Mass Tort’. 90 Nebraska Law Review 887 (2012).