The 1980s were the decade in which managerial judging truly came to fruition. The concerns of the 1960s and 1970s about increasing and potentially overwhelming caseloads culminated in a sweeping institutional effort to increase speed and efficiency and reduce costs in the 1980s. This effort took the form of urging judges to manage their cases more actively, to take a bigger role in encouraging parties to settle, and to divert some cases to ADR.

Of particular importance to case management was the change in judges’ attitude toward settlement that solidified in the 1980s. Traditionally, judges believed their job was solely to adjudicate cases, and that active judicial promotion of settlement was improper. This view began to shift during the 1960s in response to the increasing docket pressure that created a swell of interest in case management. While many judges believed that case management was intended only to prepare cases for trial, others viewed involvement in settlement as a legitimate managerial pursuit. By the 1970s, a large number of federal judges were in favor of facilitating settlement of their cases. This growing sentiment was reflected in the FJC’s inclusion of settlement as a topic in its educational materials for judges from its inception in 1968. In 1986, the FJC published Settlement Strategies for Federal District Judges, and settlement was covered extensively in the third edition of the FJC’s Manual for Complex Litigation, published in 1995.87

Amendments to the FRCP between 1980 and 1993, particularly those to Rule 26 regarding discovery and Rule 16 on the pretrial conference, contributed strongly to the emergence of managerial judging. In 1980, the Advisory Committee added subsection (f) to Rule 26 to give judges a more active role in preventing abuse of discovery. The new subsection empowered the judge to call the parties to a discovery conference and provided that counsel on either side could request such a conference if they had made a good faith effort but failed to resolve discovery disagreements with opposing counsel. Rule 26(f) was intended to address major discovery disputes rather than disagreements on narrow issues, provisions for which were included elsewhere in the rules.88

In 1993, the committee noted that the Rule 26(f) conference had been used sparingly, as was expected, with most judges handling discovery issues via scheduling orders or rulings on discovery motions. The committee reiterated the importance of judicial supervision of discovery, while moving provisions for a court-ordered discovery conference to Rule 16, making discovery one of the matters that could be addressed at the pretrial conference.89 At the same time, the committee amended Rule 26(f) to make it mandatory for the parties to meet on their own early in the pretrial process to discuss the possibility of settlement, arrange for required disclosures, and develop a discovery plan. The parties were required to submit to the court a written report outlining the plan within ten days of the meeting.

A broad package of additions and amendments to the FRCP enacted in 1983 included significant revisions to Rules 26(a) and (b) aimed at limiting the scope of discovery.90 In subsection (a), setting out methods of discovery, the sentence “Unless the court orders otherwise … the frequency of use of these methods is not limited” was deleted. In the same vein, the title of subsection (b) was changed from “Scope of Discovery” to “Discovery Scope and Limits.” The revised section provided that the court could limit the scope of discovery if it found the information sought to be “unreasonably cumulative or duplicative”; easily obtained elsewhere more conveniently; or “unduly burdensome or expensive.” A discovery request could also be denied on the basis that the party making the request had already had sufficient opportunity to obtain the information sought.

The pretrial conference procedure established by Rule 16, which had not been modified since it took effect in 1938, was amended extensively in 1983. The new Rule 16, the Advisory Committee noted, “makes scheduling and case management an express goal of pretrial procedure.”91 To that end, the rule made issuing a pretrial scheduling order mandatory and broadened the pretrial conference from one focused mainly on the trial to one encompassing the entire pretrial process, including motions and discovery. Also of major significance were the additions of “establishing early and continuing control” and “facilitating the settlement of the case” to the list of purposes of the pretrial conference. As Professor Miller put it, “Recognizing that judicial intervention should occur shortly after commencement, Rule 16 was transformed into a provision that encouraged—and in time effectively mandated—judicial management throughout the pretrial proceedings.”92 The revision was a foundational step in the flourishing of modern case management and the “transform[ation] of the presiding judge’s role from that of neutral arbiter to case supervisor.”93 Broadly speaking, the revisions made to the FRCP that began in the early 1980s greatly enhanced federal judges’ case management abilities.

• 87. Robert G. Bone, “Settlement and the ‘Good’ Judge,” Review of Litigation 38, no. 2 (2019), 215–218.
• 88. Advisory Committee, note to FRCP 26 (1980).
• 89. Advisory Committee, note to FRCP 26 (1993).
• 90. On the 1983 amendments to the FRCP generally, see George K. Walker, “The Other Amendments to the Federal Rules of Civil Procedure—Pleadings and Motions; Pretrial and Discovery; U.S. Magistrate Cases,” Wake Forest Law Review 20, no. 4 (August 1984), 819–882.
• 91. Advisory Committee, note to FRCP 16 (1983).
• 92. Arthur R. Miller, “The Pretrial Rush to Judgment: Are the Litigation Explosion, Liability Crisis, and Efficiency Cliches Eroding Our Day in Court and Jury Trial Commitments?” New York University Law Review 78, no. 3 (June 2003), 1004.
• 93. Id.

Between the 1980s and the 2000s, jurisprudential developments strengthened two dispositive pretrial motions—Rule 56 motions for summary judgment and Rule 12 motions to dismiss—as factors in case management by allowing judges to end more cases before trial or, in some instances, before discovery began.

Prior to the 1980s, summary judgment was not easy for defendants to obtain. Scholars have pointed to Poller v. CBS, Inc. (1962) as significant in limiting the use of Rule 56. In Poller, an antitrust case, the Supreme Court cautioned that “summary procedures should be used sparingly in complex antitrust litigation where motive and intent play leading roles, the proof is largely in the hands of the alleged conspirators, and hostile witnesses thicken the plot.” The credibility of such witnesses could be fairly evaluated only when they were cross-examined in front of a jury, the Court asserted.94 As Professor Miller pointed out, “Poller had a decidedly dampening effect on summary judgment in the federal courts; indeed, the reported decisions reveal very few cases of any complexity adjudicated under Rule 56 during the succeeding two decades.”95

Summary judgment remained largely disfavored in the federal courts until the Supreme Court issued three decisions in 1986—Matsushita Electric Industrial Co. v. Zenith Radio Corp., Anderson v. Liberty Lobby, Inc., and Celotex Corp. v. Catrett (often called the “Celotex trilogy”)—that expanded its use.96 The decisions were meant to clarify rather than alter the existing standards for summary judgment but nevertheless had a significant impact. Matsushita permitted the granting of summary judgment where the moving party produced evidence demonstrating the implausibility of the claim at issue. Anderson held that summary judgment was proper when the standard for judgment as a matter of law—that no reasonable jury could find for the nonmoving party—was met. Celotex specified that the moving party did not necessarily need to show the absence of a genuine issue of material fact; summary judgment was appropriate if the nonmoving party could make no showing in support of a claim on which it would bear the burden of proof at trial.97 These decisions favored the moving party and, because defendants had become the most frequent users of the summary judgment motion, made summary judgment primarily a defendant’s remedy.98

Justice William Rehnquist’s majority opinion in Celotex echoed Judge Clark’s 1940s vision of summary judgment as a case management tool for the federal courts. Justice Rehnquist described Rule 56 as a screening mechanism, a primary purpose of which was to “isolate and dispose of factually unsupported claims or defenses.”99 In 2010, Judge Patrick Higginbotham attributed the decline in federal trials largely to jurisprudential developments that began with the Celotex trilogy. “The phenomenon,” he wrote, “is fueled by the centrality of the motion for summary judgment, which has displaced the trial as the destination point for litigation.”100

Two twenty-first-century Supreme Court decisions led to a further increase in the granting of dispositive motions. FRCP 12 governs defenses asserted by pretrial motion that, if successful, will result in dismissal of the plaintiff’s case. Subsection (b) contains seven such defenses, including that the court lacks jurisdiction over either the subject matter of the suit or the defendant. Rule 12(b)(6), a frequently employed provision, provides for dismissal when a plaintiff has failed to state a claim upon which relief can be granted. The standards by which federal courts decide 12(b)(6) motions have changed over time. In Bell Atlantic Corp. v. Twombly (2007) and Ashcroft v. Iqbal (2009), the Court arguably heightened pleading standards in a way that caused more cases to be terminated under 12(b)(6) before pretrial discovery could be conducted.101 Prior to these decisions, federal courts had interpreted FRCP 8—which required “a short and plain statement of the claim showing that the pleader is entitled to relief”—to permit “notice pleading,” a style of pleading sufficient to put the defendant on notice regarding the nature of the suit without the inclusion of detailed facts. Notice pleading was usually sufficient to allow the plaintiff to survive a motion to dismiss for failure to state a claim. Broad discovery rules then permitted the plaintiff to uncover the factual information needed to prove their claim.102

In Twombly, a case involving allegations of an antitrust conspiracy, the Court highlighted the problem of discovery abuse, asserting that even careful case management had failed to curb it sufficiently. Plaintiffs with weak cases were still able to extract lucrative settlements by threatening defendants with a lengthy and expensive discovery process. The Court had this in mind when it addressed the standard an antitrust complaint must meet to avoid being dismissed under 12(b)(6) before pretrial discovery. In the case at hand, the plaintiff had alleged parallel conduct by the defendants but had not pleaded facts which, if true, amounted to conspiratorial behavior. Without the pleading of such facts, the Court ruled, the complaint must be dismissed because its allegations were insufficient to give rise to a reasonable hope that discovery would yield evidence to support the claim.103 

Two years later, the Court made clear in its Iqbal decision that the standard it articulated in Twombly—that a plaintiff must plead facts sufficient “to state a claim to relief that is plausible on its face”104—applied beyond the antitrust context to all civil cases.105 The result was a reduction in the number of cases that proceeded beyond the pleading stage to the conduct of broad pretrial discovery.106 Twombly and Iqbal had implications for case management by creating a stronger pretrial screening mechanism for weeding out cases that could otherwise consume substantial judicial resources. These cases, combined with the 1980s Celotex trilogy, provided judges with more power to end litigation they did not believe was sufficiently meritorious to proceed.

• 94. Poller v. CBS, Inc., 368 U.S. 464, 473 (1962).
• 95. Miller, Pretrial Rush, supra note 92, at 1023–1024.
• 96. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
• 97. Miller, Pretrial Rush, supra note 92, at 1041.
• 98. Haramati, supra note 34, at 174.
• 99. 477 U.S. at 323–324; Miller, Pretrial Rush, supra note 92, at 1040.
• 100. Patrick E. Higginbotham, “The Present Plight of the United States District Courts,” Duke Law Journal 60, no. 3 (December 2010), 745–746.
• 101. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), Ashcroft v. Iqbal, 556 U.S. 662 (2009).
• 102. George Shepherd, “Failed Experiment: Twombly, Iqbal, and Why Broad Pretrial Discovery Should Be Further Eliminated,” Indiana Law Review 49, no. 2 (2016), 479.
• 103. The Twombly Court did not purport to be establishing a new standard for evaluating a complaint in light of a 12(b)(6) motion. The majority opinion asserted that the oft-quoted statement in Conley v. Gibson, 355 U.S. 41, 45–46 (1957) that a 12(b)(6) motion should not be granted “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief” had frequently been interpreted too literally and taken out of context. The “no set of facts” language, “after puzzling the profession for 50 years … has earned its retirement,” the Court concluded. 550 U.S. at 563.
• 104. Id. at 570.
• 105. 556 U.S. at 684.
• 106. Shepherd, supra note 102 at 481.

In the 1960s, mass tort lawsuits began to appear in the federal courts with increasing frequency. Most of them could be characterized as either mass accident cases—arising from airplane crashes, fires, building collapses, or similar disasters—or mass products liability cases, based on injuries from use of or exposure to dangerous products. These suits increased in number partly as a result of the country’s rapid modernization after World War II, including significant advances in medicine and technology and a major expansion of the nationwide market. During a brief but intense period during the 1980s and 1990s, the federal courts, recognizing the need for some type of aggregation to handle what had become a deluge of cases, turned somewhat reluctantly to the class action as a mass tort case management device. Mass tort class actions often caused more problems than they solved, however, and MDL eventually eclipsed the class action as the preferred aggregation device for mass torts.

By the early 1980s, mass tort suits were beginning to pose serious case management problems for the federal judiciary, in large part because of their sheer number. Tort claims based on exposure to a popular prescription drug, for example, could involve millions of potential claimants. If even a small fraction of them filed suit against the manufacturer, district courts throughout the country could be overwhelmed. In 1983, Judge Spencer Williams of the Northern District of California worried that courts were being “inundated with mass filings of lawsuits by individual plaintiffs … based on a single catastrophe or the mass production and sale by one defendant of a defective product.” Judge Williams believed that “to try these virtually identical lawsuits, one-by-one” could have disastrous consequences for the judicial system.107 The judge expressed disappointment that most courts had up to that point been unwilling to embrace his preferred solution, which was to permit mass tort cases to proceed as class actions.108

Although mass tort suits were not nearly as numerous as they would later become, the drafters of revised Rule 23 in the early 1960s thought plaintiffs might attempt to bring mass accident cases as class actions but did not expect them to do so in “dispersed” mass tort cases involving large, scattered, and amorphous groups of claimants.109 Most Advisory Committee members had significant concerns about the possibility of mass accident class actions, primarily because of the new requirement of subsection (b)(3) that factual and legal questions common to the class “predominate over any questions affecting only individual members.” The committee’s note to the revised rule included the following caveat: “A ‘mass accident’ resulting in injuries to numerous persons is ordinarily not appropriate for a class action because of the likelihood that significant questions, not only of damages but of liability and defenses of liability, would be present, affecting the individuals in different ways.”

Despite the committee’s cautionary language, federal judges occasionally found mass accident cases appropriate for class treatment in the first few years after the new rule took effect.110 In American Trading and Production Corp. v. Fishbach and Moore, Inc., for example, the U.S. District Court for the Northern District of Illinois found all of Rule 23’s requirements to be satisfied by a plaintiff class seeking compensation for property damage resulting from a fire at an exhibition hall. Among other things, the court found that common issues predominated because for each exhibitor who sustained a loss, “identical evidence will be required to establish the fire’s origin, the parties’ responsibility, and proximate causation.”111 In 1972, the U.S. District Court for the Central District of California certified a class in a case arising from a plane crash—the first class action involving wrongful death claims.112 Many other courts denied certification in mass accident cases, however.113

Dispersed mass torts involving product liability claims were a different matter. While aggregating such claims in class actions made them more manageable in some ways, it posed serious case management challenges in others. The number of claimants was potentially overwhelming, their identities largely unknown, and their injuries possibly varying in timing, type, and severity. Because state law governed tort claims even when brought in federal court, the laws of many different states could be involved in the case.114 Moreover, many mass product liability cases included disputed scientific evidence and complicated proof of causation. For these reasons, most trial judges declined to certify mass product liability classes from the 1970s to the mid-1980s, and the few that did so were usually reversed by appellate courts.115 Judge Williams, for example, granted class certification in 1981 in litigation regarding the Dalkon Shield, an intrauterine device that caused severe injuries to many women, but the U.S. Court of Appeals for the Ninth Circuit vacated his decision.116

Judge Jack Weinstein of the U.S. District Court for the Eastern District of New York certified the first mass product liability class to be upheld by a federal appellate court.117 In 1983, Judge Weinstein certified an opt-out class under Rule 23(b)(3) against the makers of the herbicide Agent Orange, which was used extensively during the Vietnam War. The chemical mixture contained dioxin, exposure to which was later linked to a variety of serious diseases in Vietnam veterans. Weinstein certified a separate class, with no opt-out provision, on the issue of the defendants’ liability for punitive damages. The judge was motivated in part by one of the strongest justifications for mass tort class actions—distributional equity. If the law capped a defendant’s liability for punitive damages, those first to the courthouse would unfairly enjoy a windfall at the expense of other plaintiffs.118 Class certification in the Agent Orange case was controversial, and while the U.S. Court of Appeals for the Second Circuit upheld the certifications in 1987, it expressed the belief that Judge Weinstein’s actions were not likely to inspire other district courts to follow suit.119

Between the mid-1980s and the early 1990s, mass tort class actions transitioned from a strongly disfavored procedural vehicle to a largely accepted part of federal litigation. The primary driver of this attitudinal shift was litigation that began in the 1970s against the manufacturers of asbestos—a widely used fireproof insulation material, exposure to which was eventually linked to high rates of a lung cancer called mesothelioma and other diseases. As law professor David Marcus summed up the situation, “[T]he federal judiciary committed as an institution to Rule 23’s use to resolve dispersed mass tort litigation. A fear of total institutional breakdown, prompted chiefly by asbestos litigation, moved the class action from the periphery to the center of the mass tort stage.”120

The Federal Judicial Center conducted an asbestos case management conference in 1984 and published an asbestos case management guide the following year.121 The guide acknowledged that some observers had written of “a ‘flood of litigation’ that has been likened to a ‘tidal wave.’”122 The publication struck a calming tone, however, assuring judges that “[a]sbestos cases, however complex they may have been at first, have become relatively routine product liability cases that involve a large number of parties.”123 Acknowledging that a multiplicity of parties and issues could still pose challenges, the guide pointed to case management strategies—not involving aggregate litigation—being used in several districts to speed disposition of asbestos cases.124 The guide also noted that judges had taken widely varying approaches to settlement, ranging from ignoring settlement in favor of a sole focus on trial preparation to “intense participation in case evaluation and allocation of payments among the parties.”125

As the 1980s progressed, asbestos filings continued to increase rapidly, convincing many lawyers and judges that tort litigation would eventually flood the dockets of every federal trial court in the nation, paralyzing the judicial system.126 The federal courts were facing what was perceived to be the biggest case management challenge in their history. After a group of district judges failed in their 1990 attempt to aggregate asbestos cases informally,127 Chief Justice Rehnquist established the Judicial Conference Ad Hoc Committee on Asbestos Litigation, which reported in 1991 that “[w]hat has been a frustrating problem is becoming a disaster of major proportions to both the victims and the producers of asbestos products, which the courts are ill-equipped to meet effectively.”128 At its next meeting in March 1991, based on the committee’s conclusion that the scope of asbestos litigation had “resulted in a denial of justice and fundamental unfairness to litigants,” the Judicial Conference called for congressional action.129 When Congress declined to act, the JPML, despite having refused similar requests before, transferred all asbestos cases to the Eastern District of Pennsylvania for consolidated pretrial proceedings.

The MDL proceedings came before Judge Charles Weiner, who in 1993 certified a settlement class, a precursor to his eventual approval of a global settlement.130 The settlement class was a case management device used when parties agreed to settle a case before a judge had decided whether or not to certify a class for litigation (and sometimes before a motion for class certification or even a class action complaint had been filed). The parties’ agreement would stipulate that the judge could certify a class, as defined in the agreement, strictly for the purpose of settlement.131 Federal courts initially disfavored the settlement class because of the possibility for collusion between plaintiffs’ and defendants’ counsel. If the plaintiffs’ attorneys refused a settlement offer, defense counsel could then negotiate with a different set of plaintiffs’ attorneys—a circumstance that reduced plaintiffs’ negotiating leverage and could create incentives for attorneys to accept lower settlements.132

The second edition of the FJC’s Manual for Complex Litigation, published in 1982, cautioned judges against the use of settlement classes:

In such situations, the fairness of the settlement may be very difficult to assess. No one may know how many members are in the class, how large their potential claims are, what the strengths and weaknesses of the parties’ positions are, or how much the parties will benefit under the settlement. Lacking this information, the court should be wary of presenting the settlement to the class.133

Settlement classes were particularly controversial in the dispersed mass tort context, in part because evaluating the fairness and adequacy of a settlement with respect to future claimants (such as individuals exposed to a harmful product but not yet having manifested signs of disease) was a complex and extremely difficult task.134 Nevertheless, as mass tort cases began to clog federal court dockets in the 1980s, courts began to approve settlement classes with increasing frequency.135

The asbestos settlement class in the Eastern District of Pennsylvania ultimately led to a Supreme Court ruling that put a damper on the settlement class as a viable case management device, particularly in dispersed mass tort cases. In 1996, the U.S. Court of Appeals for the Third Circuit vacated Judge Weiner’s order approving the settlement class. In doing so, the court expressed disagreement with other courts that had viewed the fairness of a settlement as the predominant issue affecting the class, ruling that a settlement class had to fulfill all of Rule 23’s requirements (except manageability for trial) as if the case were going to be tried.136 The Supreme Court affirmed the Third Circuit’s ruling in Amchem Products, Inc. v. Windsor (1997).137 As the Court put it, “Federal courts … lack authority to substitute for Rule 23’s certification criteria a standard never adopted—that if a settlement is ‘fair,’ then certification is proper.”138

The Court noted that the members of the settlement class had significant differences between them. Despite the fact that none of them had yet sued the asbestos manufacturers,139 some had already manifested physical injuries from exposure to asbestos and some had been exposed but had not yet shown signs of injury (the latter members known as “exposure only” class members). No subclasses were delineated in the settlement agreement. The differences between class members were too great to justify a conclusion that common questions predominated in the case, the Court explained, and their interests were sufficiently different that the named plaintiffs could not adequately and fairly represent absent members of the class.140 “Rule 23,” the Court concluded, “cannot carry the large load … heaped upon it.”141

Some scholars identified Amchem and another important case, Ortiz v. Fibreboard Corp.,142 as signaling the end of the mass tort class action in the federal courts. While this conclusion was somewhat exaggerated, the decisions did make the popular device of the settlement class more difficult to use while also pointing up the inherent problems with certifying mass tort classes generally, particularly concerning the predominance of common questions and adequacy of representation.143 

The fourth edition of the Manual for Complex Litigation (2004) cautioned that while Amchem dealt with a settlement class, the issues the Court identified were equally relevant to the certification of classes for litigation. While Amchem did not “categorically preclude” class certification in a mass tort case, a number of district courts had refused to certify classes or had decertified classes in such cases, “finding that varying state laws and individual issues of exposure, causation, and damages defeat the predominance requirement of Rule 23(b)(3), making trial unmanageable.”144 The adequacy of class representatives and the typicality of their claims was also of great importance. Amchem highlighted the need for courts to “find a fair mechanism for representing the different interests of present and future claimants.”145

The manual noted the fact that certification of mass-tort class actions had fallen out of favor in federal courts to a significant degree:

Federal courts have “ordinarily” disfavored—but not ruled out entirely—using class actions in dispersed mass tort cases. After experimentation with class treatment of some mass torts during the 1980s and 1990s, the courts have greatly restricted its use in mass torts litigation. Mass tort personal injury cases are rarely appropriate for class certification for trial.146

In the 2000s, use of the MDL procedure, including in mass tort cases, increased dramatically, with Amchem as a contributing factor. The passage of the Class Action Fairness Act of 2005 (CAFA) contributed as well. In the wake of Amchem and Ortiz, plaintiffs’ lawyers increasingly filed class actions in state courts. In response to complaints that some state courts were overly plaintiff-friendly, Congress passed CAFA to expand federal jurisdiction over class actions and make it easier for defendants to remove such cases to federal court. As law professor Andrew Bradt observed, CAFA created a “catch-22” whereby federal courts had greater jurisdiction over class actions, but many of them could not be certified as such. This “created a vacuum for aggregate mass-tort litigation” eventually filled by MDL.147 Bradt asserted in 2017 that “MDL has become the leading mechanism for resolving mass torts.” More than one-third of all filed federal civil cases were part of a pending MDL as of 2014, which represented a 16% increase over the previous twelve years. “The vast majority,” Bradt noted, “are mass-tort matters, including products liability or defective drugs—cases that had been considered by some courts, at least for a brief period, as appropriate subjects for class actions.”148

The vast majority of MDLs have been resolved by settlement rather than remanded for trial. While some MDL proceedings involve class claims, many do not. The latter can be, and typically are, resolved by a non-class aggregate settlement, which is not subject to the same requirements governing settlements of Rule 23 class actions.149 In 2010, researchers at the FJC observed that several high-profile MDL settlements involving prescription drugs and medical devices “suggest that the MDL process has supplemented and perhaps displaced the class action device as a procedural mechanism for large settlements” in the mass tort context.150 As settlement classes in mass tort actions became disfavored, MDL non-class aggregate settlements became the preferred method of resolution. The shift to MDL, while lauded by many, has also been the subject of scholarly criticism, as is explored below.151

The rapid growth of mass tort litigation beginning in the 1980s posed a serious case management challenge for the federal judiciary, sparking concerns that courts would be overwhelmed with cases. In response, the courts turned, with reservations, to aggregation via the Rule 23 class action as a management device. Before long, however, the inherent difficulty of certifying classes in dispersed mass tort cases limited the effectiveness of the class action in this context. The result has been the rise of multidistrict litigation and the non-class aggregate settlement as a preferred mass tort case management tool. While some believe it to be flawed, MDL has proved a more enduring solution than the mass tort class action.

• 107. Spencer Williams, “Mass Tort Class Actions: Going, Going, Gone?” 98 F.R.D. 323, 324 (1983).
• 108. Id. at 329.
• 109. David Marcus, “The Short Life and Long Afterlife of the Mass Tort Class Action,” University of Pennsylvania Law Review 165, no. 7 (June 2017), 1567–1568.
• 110. Id. at 1568 n.16.
• 111. American Trading and Production Corp. v. Fishbach and Moore, Inc., 47 F.R.D. 155, 157 (N.D. Ill. 1969).
• 112. Case Notes, Journal of Air Law and Commerce 40, no. 2 (Spring 1974), 324; Petition of Gabel, 350 F. Supp. 624 (C.D. Cal. 1972). Somewhat confusingly, the court certified the class pursuant to Rule 23(b)(1) and (b)(2) rather than (b)(3). The Ninth Circuit rejected the district court’s approach in a later case. McDonnell Douglas Corp. v. United States District Court, 523 F.2d 1083 (9th Cir. 1975), cert. denied sub nom. Flanagan v. McDonnell Douglas Corp., 425 U.S. 911 (1976).
• 113. Marcus, Short Life, supra note 109, at 1568 n.17.
• 114. See Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938). Some federal judges declined to allow nationwide class cases to proceed on the basis that the application of multiple states’ laws made the cases unmanageable. Arthur R. Miller, “The American Class Action: From Birth to Maturity,” Theoretical Inquiries in Law 19, no. 1 (January 2018), 16.
• 115. The first mass products liability class, based on an increased risk of cancer in women exposed to diethylstilbestrol (DES) (a synthetic form of the hormone estrogen), was certified by the U.S. District Court for the District of Massachusetts in 1979. The court later decertified the class, however, on the grounds that the state supreme court had rejected the theory that manufacturers of DES could be held jointly liable for the claims of plaintiffs who could not demonstrate which company had caused their exposure. Marcus, Short Life, supra note 109, at 1572; Payton v. Abbott Labs, 100 F.R.D. 336, 338–339 (D. Mass. 1983)).
• 116. In re Northern District of California Dalkon Shield “IUD” Products Liability Litigation, 521 F.Supp. 1188 (N.D. Cal.), modified, 526 F.Supp. 887 (N.D. Cal. 1981), vacated, 693 F.2d 847 (9th Cir. 1982), cert. denied, 459 U.S. 1171 (1983).
• 117. Marcus, Short Life, supra note 109, at 1573–1575; In re “Agent Orange” Products Liability Litigation, 100 F.R.D. 718 (E.D.N.Y. 1983), aff’d, 818 F.2d 145 (2nd Cir. 1987), cert. denied, 484 U.S. 1004 (1988).
• 118. Marcus, History Part II, supra note 80, at 1827.
• 119. In re Diamond Shamrock Chemicals Co., 725 F.2d 858, 860 (2nd Cir. 1984). In this opinion, the Court of Appeals declined to review Judge Weinstein’s class certification orders by writ of mandamus. It affirmed the orders three years later.
• 120. Marcus, Short Life, supra note 109, at 1575.
• 121. Thomas E. Willging, Asbestos Case Management: Pretrial and Trial Procedures, Washington D.C.: Federal Judicial Center, 1985.
• 122. Id. at 1.
• 123. Id. at 5.
• 124. These tactics included assigning all asbestos cases to a single judge for standardized pretrial proceedings; designating a magistrate or special master to supervise discovery; appointing “liaison counsel” on each side to coordinate the scheduling of hearings, discovery motions, court appearances, and other matters; establishing standardized pleadings and discovery documents; and eliminating the filing of routine motions by deeming such motions to have been made and in some instances (such as summary judgment motions based on defenses that had been repeatedly rejected) to have been ruled upon. Id. at 15–22.
• 125. Id. at 28.
• 126. A major cause of the increase was that Johns-Manville, one of the largest asbestos manufacturers, was failing to meet its obligations to pay asbestos claims pursuant to a bankruptcy reorganization plan. The plan, approved in 1988, involved the creation of a trust fund for paying claims, but the company, which had underestimated its liability, was unable to supply the fund with enough money to pay claims in full. In response, plaintiffs’ attorneys began filing more suits (some of dubious merit) against other companies, hoping to recover before those companies went bankrupt as well. Marcus, Short Life, supra note 109, at 1578–1579.
• 127. In 1990, a group of federal district judges with the largest numbers of asbestos cases on their dockets met at the Federal Judicial Center, where they established a “national ad hoc coordinating committee,” which later issued an order to consolidate the asbestos cases into one proceeding in the Northern District of Ohio. The Sixth Circuit quickly put a stop to this attempt at informal aggregation, however, ruling that the judges lacked the jurisdictional authority to carry out their plan. Marcus, Short Life, supra note 109, at 1582.
• 128. John C. Coffee, Jr., “Class Wars: The Dilemma of the Mass Tort Class Action,” Columbia Law Review 95, no. 6 (October 1995), 1363, n.69 (quoting Judicial Conference of the United States, Report of the Judicial Conference Ad Hoc Committee on Asbestos Litigation (March 1991), 2).
• 129. Proceedings of the Judicial Conference of the United States (March 1991), 33.
• 130. Marcus, Short Life, supra note 109, at 1586–1587.
• 131. Manual for Complex Litigation, Fourth, supra note 60, at § 21.132, 250 (footnotes omitted).
• 132. Coffee, supra note 128, at 1378–1380.
• 133. Manual for Complex Litigation, Second, (Washington, D.C.: Federal Judicial Center, 1992), §30.45, 243.
• 134. Coffee, supra note 128, at 1376–1380.
• 135. Id. at 1380.
• 136. Georgine v. Amchem Products, Inc., 83 F.3d 610 (3rd Cir. 1996).
• 137. Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997).
• 138. 521 U.S. at 622.
• 139. The proposed Amchem settlement provided for non-class settlement of all pending asbestos cases and the establishment of a fund to compensate a settlement class composed entirely of future claimants.
• 140. 521 U.S. at 622–628.
• 141. Id. at 629.
• 142. Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999). Ortiz imposed more stringent requirements for the use of the “limited fund” class action settlement—a widely used device by which a fund consisting of all a defendant’s available assets was established to compensate present and future claimants.
• 143. In 1995, the Seventh Circuit reversed the certification of a class of hemophiliacs who had contracted the AIDS virus from blood solids manufactured by drug companies, and in 1996 the Fifth Circuit did the same with respect to a class of smokers suing tobacco companies for causing their nicotine addiction. Marcus, supra note 109, at 1588; In re Rhone-Poulenc Rorer, Inc., 51 F.3d 1293 (7th Cir. 1995), cert. denied sub nom. Grady v. Rhone-Poulenc Rorer, Inc., 516 U.S. 867 (1995); Castano v. Am. Tobacco Co., 84 F.3d 734 (5th Cir. 1996).
• 144. Manual for Complex Litigation, Fourth, supra note 60, at §22.72, 419.
• 145. Id. at §22.55, 393.
• 146. Thomas E. Willging and Emery G. Lee III, “From Class Actions to Multidistrict Consolidations: Aggregate Mass-Tort Litigation After Ortiz,” University of Kansas Law Review 58, no. 4 (May 2010), 786 (quoting Manual for Complex Litigation, Fourth, supra note 60, at § 22.7, 413–414.
• 147. Bradt, supra note 53, at 844–845.
• 148. Id. at 833.
• 149. The Multidistrict Litigation Act does not require transferee judges to review settlements for fairness as Rule 23 mandates for class actions, for example. The rationale for such review under Rule 23 is that class actions include absent class members who will be bound by a settlement. By contrast, a non-class MDL settlement involves separate claims and permits individual plaintiffs to opt out. Although they are not required to do so by statute, some MDL judges review settlements for fairness. The lack of a settlement review requirement in MDL proceedings has been criticized by some scholars. See, e.g., Elizabeth Chamblee, “Unsettling Efficiency: When Non-Class Aggregation of Mass Torts Creates Second-Class Settlements,” Louisiana Law Review 65, no. 1 (Fall 2004), 157–253.
• 150. Willging and Lee, supra note 146, at 801. See also Miller, American Class Action, supra note 114, at 35 (“multidistrict litigation has displaced resort to the class action in certain substantive areas—such as mass torts—because class certification has become difficult or nearly impossible to secure or in order to bypass the costly, risky, and time-consuming certification prerequisites”).
• 151. Bradt, supra note 53, at 835–836.

Alternative dispute resolution has been a vital case management tool for the federal judiciary for nearly half a century, reducing docket pressure and facilitating the resolution of many cases without judicial intervention. While ADR became a major presence in federal litigation in the 1980s, its roots stretch back to the 1970s. The concept of diverting some disputes away from the courthouse and toward other methods of resolution first gained prominence during the 1976 Pound Conference—held to address rising caseloads and access to the courts—sponsored by the Judicial Conference, the Conference of Chief Justices,152 and the ABA.153

One speech at the Pound Conference did more than any other to spark thinking about ADR: “Varieties of Dispute Processing,” by Harvard Law professor Frank Sander.154 Professor Sander argued that the legal profession had been too “single-minded” in considering the courts to be “the natural and obvious dispute resolvers.”155 The courts could not continue to operate effectively, he believed, without some alternative procedures to ease the ever-increasing demands put upon them.156 In response to this problem, Sander advocated “a flexible and diverse panoply of dispute resolution processes, with particular types of cases being assigned to differing processes (or combinations of processes).” He imagined that future courthouses might contain a “Dispute Resolution Center” at which a screening clerk would direct a claimant to the process most appropriate to their grievance.157 The goal was “to reserve the courts for those activities for which they are best suited and to avoid swamping and paralyzing them with cases that do not require their unique capabilities.”158 Sander dubbed his idea the “multi-door courthouse.”159

In 1978, three federal judicial districts—the Eastern District of Pennsylvania, the Northern District of California, and the District of Connecticut—began a pilot program to experiment with court-annexed arbitration.160 In 1985, the Administrative Office of the U.S. Courts obtained funding from Congress to expand the pilot program to eight additional districts. Congress then authorized an additional ten districts in the Judicial Improvements and Access to Justice Act of 1988.161 While these early programs varied according to each court’s local rules, they had some features in common. Certain types of cases were mandatorily referred to arbitration before a single arbitrator or a panel of three. After a hearing, the arbitrators would issue a decision and make an award. Either side had the right to request a trial de novo, but if no such request was made, the arbitrators’ award would become final and unappealable.162

A 1983 amendment to FRCP 16 reflected the growing focus on ADR, requiring consideration at the pretrial conference of “the possibility of settlement or the use of extrajudicial procedures to resolve the dispute.” A 1993 amendment modified this language to read “using special procedures to assist in resolving the dispute when authorized by statute or local rule.”163 The Advisory Committee elaborated by noting, “Even if a case cannot immediately be settled, the judge and attorneys can explore possible use of alternative procedures such as mini-trials, summary jury trials, mediation, neutral evaluation, and nonbinding arbitration.”164 The committee pointed out that statutes or local rules might authorize the use of some of these procedures without the parties’ consent.165

The Civil Justice Reform Act (CJRA) (part of the Judicial Improvements Act of 1990) was a congressional effort to boost case management, in part by encouraging courts to use ADR more extensively. The statute required every federal judicial district to establish a civil justice expense and delay reduction plan. In doing so, courts were directed to consider including court-sponsored ADR, such as “mediation, mini-trial, and summary jury trial” in their plans.166 The Alternative Dispute Resolution Act of 1998 went a step further, requiring that each district court provide litigants with at least one court-sponsored ADR program, defined as any procedure not involving traditional litigation “in which a neutral third party participates to assist in the resolution of issues in controversy, through processes such as early neutral evaluation, mediation, minitrial and arbitration.”167 The Act provided that arbitration could be authorized in civil cases with the parties’ consent except in cases involving the alleged violation of constitutional or civil rights and cases in which more than $150,000 was at stake.168

A U.S. Department of Justice compendium last updated in 2016 summarized the local rules of each U.S. district court as they pertained to ADR.169 The summaries displayed a wide range of policies regarding the voluntariness of ADR. In some jurisdictions, participation in ADR was entirely voluntary, while in other courts, cases were assigned to ADR automatically, with limited exceptions. Many jurisdictions had policies falling between these two poles, such as those providing that the parties must “consider” whether ADR may be helpful in resolving their dispute and those authorizing judges to order parties to participate in nonbinding ADR in certain circumstances. In every district, nonbinding mediation was available to the parties upon their agreement. In a widely followed decision, the First Circuit ruled in 2002 that federal courts could make mediation compulsory by local rule but, even in the absence of such a rule, could order parties to mediate by virtue of the court’s inherent authority to manage its docket.170 The constitutional right to a jury trial prohibits courts from compelling parties to use binding ADR processes, however.

While Frank Sander’s concept of the multi-door courthouse did not come to fruition exactly in the way he envisioned, the substantial growth of ADR has brought about conditions not dramatically different from his ideas. As Resnik noted in 2000, “In addition to clerical and administrative workers, a host of auxiliary personnel—bearing titles such as ‘court-annexed arbitrators,’ ‘early neutral evaluators,’ ‘mediators,’ ‘parajudicial officers,’ and ‘staff attorneys’—also work under the aegis of judges to provide advice to litigants and sometimes to make decisions about disputes.”171 The Administrative Office of the U.S. Courts emphasizes the use of ADR in materials intended to educate the public about the federal courts, illustrating the importance of ADR as a tool to bring cases to a speedy resolution without the need for judicial intervention.172

• 152. The Conference of Chief Justices was founded in 1949 by the chief justices of several state supreme courts with the assistance of the ABA Section of Judicial Administration. The History of the Conference of Chief Justices (Williamsburg, Va.: Conference of Chief Justices and National Center for State Courts, 2009), 10.
• 153. The formal name of the gathering was the National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice. The 1976 conference commemorated the seventieth anniversary of Dean Roscoe Pound’s 1906 speech of the same title and was thus referred to in shorthand as “the Pound Conference.” Addresses Delivered at the National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice, 70 F.R.D. 79 (1976).
• 154. Frank E.A. Sander, “Varieties of Dispute Processing,” Addresses Delivered at the National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice, 70 F.R.D. 111–134 (1976).
• 155. Id. at 112.
• 156. Id. at 114.
• 157. Id. at 131.
• 158. Id. at 132.
• 159. Frank E.A. Sander, “The Multi-Door Courthouse,” Barrister 3, no. 3 (1976), 18–21.
• 160. Court-annexed ADR programs involve the diversion of cases already filed in court, as opposed to private arbitration or mediation, which are used when no lawsuit has been filed.
• 161. Barbara S. Meierhoefer, Court-Annexed Arbitration in Ten District Courts (Washington, D.C.: Federal Judicial Center, 1990), 14–15; Judicial Improvements and Access to Justice Act of 1988, Pub. L. No. 100–702, 102 Stat. 4642 (1988).
• 162. Meierhoefer, supra note 161, at 3.
• 163. Professor Resnik argued that the elimination of the word “extrajudicial” indicates that ADR “became part of the judicial portfolio rather than external to it.” Judith Resnik, “Seeing ‘the Courts’: Managerial Judges, Empty Courtrooms, Chaotic Courthouses, and Judicial Legitimacy, from the 1980s to the 2020s,” Review of Litigation 43, no. 2 (Spring 2024), 226 (emphasis in original).
• 164. A summary jury trial is a condensed pretrial procedure in which each side presents its case to a mock jury and receives a nonbinding advisory verdict as an aid in settlement negotiations. In early neutral evaluation, a neutral third party provides an assessment of the strength of each side’s case, also as an aid to settlement. A minitrial is a procedure in which each side presents its case to a panel of mediators who then attempt to reach a settlement, typically nonbinding, without the involvement of the parties or their attorneys in negotiations.
• 165. Advisory Committee note to FRCP 16 (1993).
• 166. Civil Justice Reform Act of 1990, Pub. L. No. 101–650, Title I, 104 Stat. 5092 (1990) (codified at 28 U.S.C. §471 et seq. (1994)). The Civil Justice Reform Act expired in 1997. While it was initially unclear whether the section providing for expense and delay reduction plans had expired along with other provisions, Congress added a proviso to the Federal Courts Improvement Act of 2000 indicating that it had. Carl Tobias, “The Expiration of the Civil Justice Reform Act of 1990,” Washington and Lee Law Review, 59 no. 2 (Spring 2002), 543. In its final report to Congress on the Act, the Judicial Conference stated that “[t]he federal judiciary is committed to, and believes in, sound case management to reduce unnecessary cost and delay in civil litigation.” Gensler at 680.
• 167. Alternative Dispute Resolution Act of 1998, Pub. L. No. 105–315, 112 Stat. 2993 (1998).
• 168. 112 Stat. at 2995–2996.
• 169. Office of Legal Policy, U.S. Department of Justice, ADR in the Federal District Courts—District-by-District Summaries (last revised March 2016); https://www.justice.gov/archives/olp/compendium-federal-district-courts-... (accessed October 6, 2026).
• 170. In re Atlantic Pipe Corp., 304 F.3d 135 (1st Cir. 2002).
• 171. Judith Resnik, “Trial as Error, Jurisdiction as Injury: Transforming the Meaning of Article III,” Harvard Law Review 113, no. 4 (February 2000), 953.
• 172. "To avoid the expense and delay of having a trial, judges encourage the litigants to try to reach an agreement resolving their dispute. In particular, the courts encourage the use of mediation, arbitration, and other forms of alternative dispute resolution, or ‘ADR,’ designed to produce an early resolution of a dispute without the need for trial or other court proceedings. As a result, litigants often decide to resolve a civil lawsuit with an agreement known as a ‘settlement.’” Administrative Office of the U.S. Courts, “Understanding the Federal Courts,” 11; https://www.uscourts.gov/sites/default/files/understanding-federal-court... (accessed October 6, 2026).

The rise of modern case management in the 1980s and beyond relied heavily on an expanded role for U.S. magistrate judges. The Federal Magistrates Act of 1968 established the position of U.S. magistrate (renamed U.S. magistrate judge in 1990) to replace the office of U.S. commissioner. The Act provided the magistrates with greater powers than the commissioners had possessed, including the authority to conduct misdemeanor trials with the consent of the defendants, to serve as special masters in civil actions, and to assist district judges in pretrial and discovery proceedings as well as appeals for post-trial relief. The judges of the U.S. district court appointed magistrates to full-time terms of eight years or part-time terms of four years.173

Congress expanded the authority of U.S. magistrates in 1976 and again in 1979. The 1976 amendments to the statute significantly increased magistrates’ participation in case management. The amending act authorized magistrates to hear and determine a variety of pretrial matters. For example, they could decide non-dispositive motions, conduct hearings such as evidentiary hearings, and submit to a U.S. district judge proposed findings of fact and a recommended result for dispositive motions.174 The 1979 amendments went further, authorizing magistrates to conduct any or all proceedings in civil cases if all parties consented.175

The specific duties of U.S. magistrate judges are determined by the judges of each U.S. district court. While magistrate judges therefore do not perform identical functions in every court, district judges have, over time, generally increased their reliance on them to assist in pretrial case management. Magistrate judges participate regularly in all aspects of civil case management, including scheduling, resolving discovery disputes, overseeing settlement conferences, conducting mediations, and sometimes managing ADR programs.176 

The passage of the CJRA in 1990 resulted in even greater magistrate judge participation in case management.177 In its report on the Act, the Senate Judiciary Committee stressed that magistrate judges “can and should play an important role, particularly in the pretrial and case management process.”178 Judge Philip Pro, who served as both a U.S. magistrate judge and a U.S. district judge in Nevada, noted that when magistrate judges were relied upon heavily in pretrial case management, “their pretrial rulings helped define the parameters of the case for both the parties and the assigned district judge.” Their decision-making, he continued, “would seem to influence the parameters of summary judgment motions later filed, the scope of trial before the district judge, and the boundaries of potential settlement.”179 Judge Pro’s observations highlighted how the expanded role of magistrate judges and their increased influence over the course of civil cases was a boon to case management, helping to streamline even those cases not resolved before trial.

• 173. Federal Magistrates Act, Pub. L. No. 90–579, 82 Stat. 1107 (1968) (codified at 28 U.S.C. §631 et seq).
• 174. Pub. L. No. 94–577, 90 Stat. 2729 (1976).
• 175. Federal Magistrate Act of 1979, Pub. L. No. 96–82, 93 Stat. 643 (1979).
• 176. Anthony Marcum, “Why Federal Magistrate Judges Can Improve Judicial Capacity,” University of Cincinnati Law Review 88, no. 4 (2020), 1023–1024.
• 177. Philip M. Pro, “U.S. Magistrate Judges: Present but Unaccounted for,” Nevada Law Journal 16, no. 3 (Summer 2016), 810.
• 178. Tim A. Baker, “The Expanding Role of Magistrate Judges in the Federal Courts,” Valparaiso Law Review 39, no. 3 (Spring 2005), 668 (quoting U.S. Senate Committee on the Judiciary, Report on S. 2648, The Judicial Improvements Act of 1990, Sen. Rpt. 101-416 (1990), 21).
• 179. Pro, supra note 177, at 804.