Tuesday, October 3, 2006
Professor Alexandra Lahav of University of Connecticut School of Law has posted on SSRN an interesting working paper, Rehabilitating Bureaucracy. The working paper will subsequently be published in the Florida Law Review in 2007. Here's the abstract:
This article critiques the idea that federal courts should avoid administering routine claims. The federal courts are faced with large numbers of routine claims, such as those resulting from mass torts, systematic civil rights violations and consumer fraud. Federal judges, concerned about the transformation of the judicial role from adjudicator to administrator (or, worse yet, technocrat), have avoided the necessity of administering such mass claims through the application of various narrowing legal doctrines. These procedural constraints have limited the availability of mass claims resolution procedures within the courts, such as the class action, and have driven claims administration to various forms of private ordering. Instead of preserving the day in court ideal, this narrowing approach has actually heralded its demise. Using as an example the litigation surrounding the dangerous diet drug combination Fen-Phen, the article describes how regulatory failure produces mass torts, resulting in an influx of cases into the federal courts. The courts, loath to oversee the administration of such routine claims and too overwhelmed to treat each case individually, encourage complex settlements to privately administer claims. There are legitimate reasons to fear the bureaucratic administration of mass tort claims in the courts. These reasons, including fear of erroneous determinations, alienation and capture, are the same concerns that animated the debate over the rise of administrative agencies in the last century. But administration also has its virtues. It serves broader democratic goals, such as access to justice, that ought to be recognized. When judges avoid the administration of mass claims, they are not deferring to the legislature. Rather, they are ceding power to private actors who, history has proven, will harm large numbers of individuals in the absence of regulation. Instead of limiting administration in the courts and deferring to private ordering, we need to develop a positive vision for court administration of large numbers of routine claims: a humanized bureaucracy that is exposed to public scrutiny and understood as an important, sophisticated judicial function intended to realize the widely recognized values of the legal system.