Article Title
Mass Torts and Due Process
Abstract
A consensus is emerging that the law of civil procedure stops at the claim. A federal court has considerable discretion over the procedures that apply to the claim, but the claim itself is, for the most part, inviolable. In its recent decisions, the Supreme Court has emphasized the importance of protecting the claim and, in particular, a plaintiffs control, or autonomy, over it. In doing so, the Court has invoked a "deep-rooted historic tradition that everyone should have his own day in court." To force "[un]willing" plaintiffs to give up control of their claims, such as through a mandatory class action, which provides no right to opt out of the class, would "abridge" each plaintiffs "substantive right." The Court, in fact, has strongly suggested that protecting a plaintiffs autonomy over the claim is a requirement of the Due Process Clause. After all, the claim is a "property" interest that cannot be deprived without due process, and "the usual rule for sales of either personal or real property is that the power of sale resides with the property owner."