Mississippi College Law Review
It's not about whether there will be mass aggregate litigation, but how. As long as the economy features mass marketing, mass employment, mass entertainment, mass transportation, mass production of goods, and mass provision of services, disputes will arise in which a mass of claimants seek relief from a common defendant or set of defendants. Lawyers on both sides naturally handle such matters collectively rather than individually. With or without the judicial imprimatur of class certification, multi- claimant disputes routinely are litigated and resolved on a collective basis. The real question is not whether there will be mass litigation, but whether mass litigation will be subject to formal procedural safeguards or will in- stead proceed without clearly defined ethical duties or meaningful judicial supervision. Mississippi does not permit class actions. Yet Mississippi has been a hotbed of mass litigation, particularly mass tort litigation. This article explains why Mississippi needs a class action rule, by com- paring the class action to its realistic alternatives. Part I explores how mass aggregate litigation occurs in the absence of a class action rule. By examining the business of mass litigation and by reviewing the Mississippi experience, it shows that a state does not avoid mass litigation by prohibiting class actions. Rather, a prohibition on class actions channels mass disputes into other modes of formal and informal aggregate dispute resolution. Part 1I explains why, in some cases, class actions function better than other forms of aggregate litigation. Part III addresses two potential objections to a Mississippi class action rule, both of which involve the capacity of the court system to handle class actions, and concludes that neither objection justifies rejection of a class action rule.
Howard M. Erichson,
Mississippi Class Actions and the Inevitability of Mass Aggregate Litigation, 24 Miss. C. L. Rev. 285 (2004-2005)
Available at: http://ir.lawnet.fordham.edu/faculty_scholarship/214