RAND Review
Special Section
The Globalization of Mass Litigation
By Deborah R. Hensler
Deborah Hensler, the Judge John W. Ford Professor of Dispute Resolution at Stanford Law School, is director of the Stanford Center on Conflict and Negotiation.
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Contents of This Section:
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The establishment of the ICJ in 1979 coincided — perhaps not entirely by accident — with the growth of mass tort litigation in the United States. Although asbestos and tobacco lawsuits are now viewed as emblematic mass torts, most of the early mass tort cases targeted the pharmaceutical industry. By the mid-1980s, the courts were awash with suits against the manufacturers of contraceptive devices and pregnancy-related drugs.
Commentators distinguish mass tort litigation from more-ordinary torts (typically individual claims for personal injury or property damage) on a number of different dimensions. Some commentators are struck mainly by the scale of the litigation: thousands of cases — sometimes tens of thousands — brought against one or a few companies, representing a risk so huge as to threaten the existence of major corporations. Other commentators focus on the aggregative procedures — such as multidistrict litigation, consolidation, class actions, and other global settlement devices — that judges, lawyers, and parties have adopted to reduce the costs of resolving large numbers of cases.
The mass personal injury and property damages lawsuits of the 1980s were not the United States’ first experience with large-scale litigation. The amendment of Rule 23 of the Federal Rules of Civil Procedure (the modern class-action rule) in 1966 was followed by a surge of consumer antitrust and securities litigation. However, within a few years, the courts had imposed limits on the application of the newly revised rule. By the late 1970s, controversy over class actions had died down, and it was tort reform, rather than class-action reform, that stirred the ICJ’s initial sponsors.
It was not until the mid-1990s, nearly 20 years later, that the growth in securities and consumer litigation stirred renewed controversy over class actions. By 2000 — with “traditional” mass tort litigation (such as asbestos cases) surging and state attorneys general targeting the tobacco, gun, managed care, and fast food industries — mass torts and class-action reform were back in the headlines. Now, mass tort lawsuits, including class actions, are spreading worldwide.
A Global “Disease”?
Much has been written about the benefits and costs of the expansion of mass litigation. One thing is clear: When it comes to civil litigation, the old adage “there’s strength in numbers” has special meaning. For good or ill, mass litigation, in all its varied forms, has unlocked the courthouse doors to Americans with diverse claims ranging from discrimination to consumer fraud to personal injury to violations of human rights.
But what happens outside the United States? A decade ago, I was often introduced to foreign audiences as an expert on “the American disease,” defined variously as “popular litigiousness,” “contingent fee lawyering,” and “class actions run amok.” Foreign corporate representatives said they wanted to learn more about American-style litigation so they could determine how to keep it from their shores. American corporate representatives offered data showing the slimness of their litigation budgets for products marketed abroad, compared with budgets for products marketed here at home.
When I travel outside the United States today, in contrast, I am as likely to be consulted on how to fashion an American-style litigation system — or how to negotiate within one. Class actions are available in several Canadian provinces. The English courts have adopted a “group litigation” procedure that provides for the collection of civil suits arising out of the same or similar factual circumstances. The procedure operates much like “multidistricting,” the procedure for consolidating cases in the U.S. federal courts. Australia has adopted a class-action rule modeled on Rule 23, as has Indonesia. Brazil’s consumer code includes a provision for class actions. Sweden recently debated legislation providing for class actions. And corporations around the world must come to U.S. courts to defend themselves against class-action claims under the Alien Tort Claims Act.
A Venezuelan tire store owner moves some old Firestone tires in Caracas, Venezuela, in August 2000. Venezuelan authorities have sought to hold Ford Motor Co. and Bridgestone/Firestone Inc. responsible for at least ten deaths in 62 car accidents allegedly caused by defective tires on Ford Explorers distributed in Venezuela. |
More-subtle signs of a worldwide convergence toward American-style mass litigation abound. Last year, a Taiwanese lawyer visiting Stanford as a Fulbright scholar wrote a paper for my complex litigation seminar on “representative securities litigation” in Taiwan, which bears considerable resemblance to class actions here. A Venezuelan lawyer in the same seminar wrote about how Venezuelan lawyers joined the mass tort litigation against Ford and Firestone in U.S. courts. An American class-action attorney and guest lecturer noted that his firm’s practice is becoming increasingly internationalized.
This past fall, the Taiwanese student arranged a meeting for me with Taiwanese workers who were pursuing a toxic exposure case in Taiwan’s courts. The workers wanted to discuss whether and how they might gain access to U.S. courts. This past spring, several dozen law schools — consciously modeled after American law schools — opened in Japan, allegedly in response to Japanese corporations’ calls for more lawyers to deal with the demands of globalization.
Or Just a Symptom?
It is tempting to think that the “American disease” is indeed being spread throughout the world by American lawyers. But while civil procedures honed in U.S. courts may play a key role in shaping mass litigation around the world, the litigation itself reflects deeper trends that are spreading worldwide. Some scholars have suggested that as standards of living increase, people seem to have less taste for risk; perhaps they have less tolerance for questionable business practices as well. Globalization also imposes new requirements on businesses worldwide, including the requirement to comply with myriad governmental regulations.
But must an increased global desire for what Stanford law professor Lawrence Friedman has dubbed “total justice” lead inevitably to more litigation? The desire could lead instead to demands for government investigation of mass injustices and for social compensation schemes — for public rather than private enforcement of rights and obligations.
The American experience suggests that a preference for private litigation as a strategy for achieving economic and social aims may flow naturally from an antigovernment, capitalist ethos. Perhaps we should not be surprised if the global spread of capitalism and the worldwide promotion of the rule of law lead other countries to make more use of their courts and to look more kindly on adopting private litigation strategies to achieve policy objectives. As lawyers and litigants around the world look into their mirrors, increasingly, the faces they see are ours. 
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