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Essay

Judith Resnik*

Stories, Individuals, Statistics, Aggregation, Torts, and Social Justice: Deborah Hensler’s Aspirations for Law https://doi.org/10.1515/jtl-2025-0008 Received March 17, 2025; accepted March 17, 2025; published online April 8, 2025

Abstract: Engaging with Deborah Hensler’s career provides a window into the transformation of tort litigation, of courts, of legal empiricism, and of legal studies. In the 1980s, I joined a project of the Institute of Civil Justice of RAND to do an innovative study focused on civil litigants that elicited information directly from them, as contrasted with lawyers or lab-based simulations. The litigants we studied had favorable views of trial; they described themselves as able to participate, to be heard, and to have received respectful treatment. Trial and arbitration ranked more favorably than judge-run settlement conferences and lawyer-lawyer bilateral negotiations, which excluded the people whose cases were at issue. Reflecting back, this study—part of what was then a growing procedural justice literature—docu- ments a world of litigation that has since become unusual. The lawsuits we studied involved torts; litigants sought relatively modest sums and proceeded case by case with lawyers who represented them. Today’s litigation world looks radically different. Torts have declined as a percentage of federal and state court caseloads,

All rights reserved, 2025. Arthur Liman Professor of Law, Yale Law School. Thanks to Nora Freeman Engstrom, Norman Spaulding, Amalia Kessler, David Freeman Engstrom, Diego Zambrano, Ayelet Sela, Greg Keating, and Ellen Bublick for shaping the Hensler Conference (with its joyous reunion of people from various vectors of Deborah’s life and her family) and the publication, to participants at the Conference for which this essay was written, to Dennis Curtis for thinking about these issues with me, to the staff of the Journal of Tort Law, and to Yale Law Students Margaret Baughman, Jessica Boutchie, Avital Fried, and Mikael Tessema for wonderful research. I also want to invoke Francis McGovern, who was a dear friend of Deborah’s and would have been a marvelous participant in this conference as he graced and illuminated so many discussions. And, centrally, of course, my thanks to Deborah Hensler, who has been a wonderful colleague, teacher, inspiration, role model, co-venturer, and friend.

*Corresponding author: Judith Resnik, Yale Law School, 127 Wall Street, New Haven, 06520-8215, CT, USA, E-mail: judith.resnik@yale.edu

J. Tort Law 2024; 17(2): 213–235

aggregation has gained saliency as amajormode of proceeding for tort claims that do enter the system, and the courts are awashwith lawyerless litigants. This essaymaps those changes, the debates about aggregation of torts in class actions, the impact of bankruptcies involving defendants in asbestos and other product liability litigation, the rise of multi-district litigation, corporate defendants’ search for “global peace,” and the turn in courts to consider how gender, race, and ethnicity affect their pro- cesses and substantive law. Deborah Hensler reminds us to aggregate and to disaggregate, to think about the ideas underlying calls for a “day in court” and “due process” and analyze the tradeoffs, to find ways to learn from participants in litigation systems about their forms and functions, and to probe outcomes so as to assess what remedies and money flows to whom, and why.

Keywords: Tort litigation; procedural justice; lawyerless litigants; aggregation; class actions; gender bias task forces

Because this essay’s title begins with the word “stories,” I start with one. I first met Deborah Hensler in the early 1980s. I had begun teaching at USC, and RAND had recently launched its Institute for Civil Justice (ICJ). I was invited to put together a course on Procedure for the assembled researchers—a distinguished group of social scientists of whom Deborah was one. From there, we went on to do research and work together on a variety of topics. In this essay, I sketch a few of these projects, ranging from studies of individual tort litigants to large-scale aggregates and of the impact of gender, race, and ethnicity in court. This small (and non-random, of course) sample provides windows into the breadth of Deborah’s contributions in building knowledge about the workings and impact of legal systems, both in the United States and abroad. A title of one of her essays—“Stories and Statistics”1—captures Debo- rah’s skill at integrating individual experiences with large-scale research that is always attentive to issues of social justice.

1 Perceptions of Procedural Fairness

Our initial joint foray brings me to another word in this essay’s title—“individuals.” Learning from people seeking remedies through the civil legal system was the point of one project in which Deborah played a central role. In the 1980s, we wanted to understand how people in tort litigation understood their experiences; some had decisions after trial, while others’ outcomes came via arbitration, bilateral

1 Deborah R. Hensler, Studying Gender Bias in the Courts: Stories and Statistics, 45 STAN. L. REV. 2187 (1993).

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settlements, and judicial settlement conferences.2 Three of these processes entailed “third-party procedure”—in which a judge participated either at a trial or in a settlement conference, or in which an arbitrator presided at a hearing. The fourth procedure was one in which lawyers engaged in bilateral negotiations.3

This 1980s project was innovative in that it was focused on civil litigants, as contrasted with criminal defendants, and it aimed to elicit information from liti- gants, as contrasted with lawyers or through lab-based simulations that often used students as subjects. The research was also difficult, labor-intensive, and expensive. The addresses of litigants were not generally in court files, and finding and inter- viewing litigants directly was costly. In this effort, Deborah and I joined Allan Lind, RobMacCoun, Pat Ebener,William Felstiner, and TomTyler to gathermaterials from litigants through interviews in Pennsylvania, Virginia, and Maryland. Our findings were consistent with the “procedural justice” literature of which this study was a part.4 Litigants reported that procedure mattered—which is to say outcomes were not the only metric on which they pegged their perceptions of fairness and satis- faction.5 As we wrote in Eye of the Beholder, the facets that litigants cared about included a sense of having some control during the process, of being treated with respect, of practices that they perceived to be dignified, and of being offered opportunities to be heard.6

Discussions of dispute resolution—and especially materials promoting alter- native forms of dispute resolution—conceive of trials as intimidating, unduly formal, daunting, and laden with inaccessible interactions. Yet the litigants we studied had favorable views of trial; they described themselves as able to participate, to be heard, and to have received respectful treatment.7 On those measures, arbitration was

2 E. Allan Lind, Robert J. MacCoun, Patricia A. Ebener, William L.F. Felstiner, Deborah R. Hensler, Judith Resnik & Tom R. Tyler, In the Eye of the Beholder: Tort Litigants’ Evaluations of Their Expe- riences in the Civil Justice System, 24 LAW& SOC’Y REV. 953 (1990); EDGAR LIND, ROBERT J. MACCOUN, PATRICIA A. EBENER, WILLIAM L. F. FELSTINER, DEBORAH R. HENSLER, JUDITH RESNIK & TOM TYLER, RAND, THE PERCEPTION OF

JUSTICE: TORT LITIGANTS’ VIEWS OF TRIAL, COURT-ANNEXED ARBITRATION, AND JUDICIAL SETTLEMENT CONFERENCES (1989). 3 Lind,MacCoun, Ebener, Felstiner, Hensler, Resnik& Tyler, Eye of the Beholder, supranote 2, at 960– 66. 4 See, e.g., TOM TYLER, Procedural Justice, Legitimacy, and Compliance, in WHY PEOPLE OBEY THE LAW (1990); LEGITIMACY AND CRIMINAL JUSTICE: INTERNATIONAL PERSPECTIVES (Tom R. Tyler ed., 2007). At the time, Thibaut and Walker had done laboratory-based inquiries on assessments of “fairness” and “satis- faction.” John Thibaut & Laurens Walker, A Theory of Procedure, 66 CALIF. L. REV. 541 (1978). 5 That conclusion comported with analyses of criminal defendants and suspects. See, e.g., Tom R. Tyler & Robert Folger, Distributional and Procedural Aspects of Satisfaction with Citizen-Police Encounters, 1 BASIC & APPLIED SOC. PSYCH. 281 (1980). 6 Lind, MacCoun, Ebener, Felstiner, Hensler, Resnik & Tyler, Eye of the Beholder, supra note 2, at 954– 55. 7 Id. at 968, 980–81.

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likewise appreciated for its structure and opportunities. Trial and arbitration ranked more favorably than judge-run settlement conferences and lawyer-lawyer bilateral negotiations,8 which excluded the people whose cases were at issue. Direct partici- pation was valued, as was formality. This project was one of many in which Deborah shaped novel projects focused on what individuals understood about the legal sys- tem.9 Of course, the analysis had to take into account that preference formation is not exogenous, that “false consciousness” (a term of that era) could play a role, and that inquiries should consider the impact of gender, income, and race.10

As I reflect back, I am struck by what we took for granted at the time in a way that nowmakes this project antique, as well as pioneering. The lawsuits we studied were about torts in which litigants sought relatively modest sums, proceeded case by case, and litigants had lawyers, presumably paid through contingency fees. Today’s litigation world looks radically different on each of those dimensions. Torts have declined as a percentage of federal and state court caseloads, aggre- gation has gained saliency as a major mode of proceeding for tort claims that do enter the system, and the courts are awash with lawyerless litigants. I unpack each point below.

The composition of court caseloads—state and federal—has changed. The per- centage of cases involving torts has declined, as have the opportunities for trial.11

That decline is an artifact in part of the social and politicalmovements that prompted much of thework of the ICJ, as the “tort wars,” and “tort reform”were hot topics from the ICJ’s inception. With Deborah at its helm for many years, the ICJ exemplified a commitment to knowledge production that, given its receipt of funds from some of the partisans, would not please parts of its audience.12 During Deborah’s tenure, the ICJ produced a steady stream of studies that demonstrated a variegated landscape. For example, in the ICJ’s 1987 Trends in Tort Litigation: The Story Behind the Statistics, Deborah (joined byMary E. Vaiana, James S. Kakalik, andMark Peterson), insisted on

8 Id. at 965, 985. 9 In another project, Dennis Curtis and I joined Deborah Hensler in thinking about the interplay between individuals and aggregate tort litigation. Judith Resnik, Dennis E. Curtis & Deborah R. Hensler, Individuals Within the Aggregate: Relationships, Representation, and Fees, 71 N.Y.U. L. REV. 296 (1996). 10 Lind, MacCoun, Ebener, Felstiner, Hensler, Resnik & Tyler, Eye of the Beholder, supra note 2, at 986. 11 Civ. Just. Initiative, Landscape of Civil Litigation in State Courts, NAT'L CTR. FOR STATE CTS. 30 (2015); Patricia W. Hatamyar Moore, The Civil Caseload of the Federal District Courts, 2015 U. ILL. L. REV. 1177, 1211–14; Cynthia Estlund, The Black Hole of Mandatory Arbitration, 96 N.C. L. REV. 679 (2018). 12 Robert J. MacCoun, Deborah Hensler and the Institute for Civil Justice: Striving to Speak Truth to Power in the Tort Reform Debate, J. TORT L. 17, 203–11 (2025). That tradition continues; see James M. Anderson, Maya Buenaventura, Amy Mahler & Nicholas M. Pace, Empirical Tort Law (and Theory) – An Essay in Honor of Deborah Hensler, J. TORT L. 17, 97–115 (2025).

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nuance amidst the rhetoric of a “litigation explosion.” That report laid out claims on both sides about filings, jury awards, and expenses, and documented that no “single tort system” existed.13 A first point was to underscore the challenges of accurate data and of baselines by which to assess information. As the report detailed, states collect information differently and, both within a jurisdiction and across them, data gaps are significant. Using materials available, the National Center for State Courts and the ICJ’ s own analyses showed that, from 1981 to 1984, tort litigation had increased— on one assessment by 2.3 percent and another by 3.9 percent.14 Thus, nationwide and given population increases, the volume of cases was “growing relatively slowly”; to assess the import of what was found, more data—on the numbers of claims poten- tially to be made—was needed but not readily available.15

As Deborah and her colleagues pointed out, analyses had to vary depending on what segment of the tort world was in focus. In California, cases involving auto- mobile accidents were relatively stable, but “high-stakes personal injury suits”were growing faster.16 The report examined the increase in products liability cases—at times involving latent injuries, such as asbestos and Dalkon Shield claims. When more than 325,000 cases were pending against A.H. Robins, which hadmanufactured the Dalkon Shield, the company went into bankruptcy.17

The ICJ 1987 report also addressed the fraught topic of jury awards; it showed that, in counties in California and in Illinois, median awards had not changed much, albeit with declines in a few areas.18 In contrast, average amounts had grown along with the likelihood of winning.19 Yet post-verdict bargaining reduced amounts in some cases.20

Transaction costs had, however, increased substantially.21 In short, “routine personal injury cases” were relatively stable with a slow growth. High-stakes cases, with un- certainty surrounding outcomes, were up, and the transaction costs were also rising.22

Nuanced research did not stop some segments of the business and insurance communities from arguing that the legal system was running amok. One goal was to put into place legislation to limit tort litigation. Successes, from that vantage point, included caps on damages for some kinds of injuries including in medical

13 DEBORAH R. HENSLER, MARY E. VAIANA, JAMES S. KAKALIK & MARK A. PETERSON, TRENDS IN TORT LITIGATION: THE STORY BEHIND THE STATISTICS (1987). 14 Id. at 6. 15 Id. at 6. 16 Id. at 7. 17 Id. at 10. 18 Id. at 14–16. 19 Id. at 17–19. 20 Id. at 14–24. 21 Id. at 28. 22 Id. at 25–34.

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malpractice lawsuits23 and enforceable mandates to use arbitration systems rather than courts—even in cases alleging wrongful death.24 Nonetheless, criticism of tort litigation continues. One voice is the American Tort Reform Foundation (ATRF), founded in 1997 with its “primary purpose” to educate “the general public about how the civil justice system operates.”25 ATRF publishes a yearly monograph it calls Judicial Hellholes—referencing jurisdictions in which plaintiffs prevailed.26 Each year, the report “shines its brightest spotlight” on a few that, as described in the 2023 and 2024 reports, permit “litigation tourism” producing verdicts on behalf of plain- tiffs in various kinds of cases.27

In addition to barriers to entry that had not existed in the 1980s, another contrast with today’s world is that tort lawsuits involved relatively modest sums and were dealt with individually. Rising costs of litigation, intertwined with law firm billing practices, expert witness fees, and the complexity of proof for some kinds of cases have pushed out individuals seeking modest recoveries; one plaintiff’s attorney told me a few years ago that absent a claim of at least $250,000, he would not consider proceeding.

Cost drivers include that, in some kinds of cases, the pool of experts is small and their fees large. In others, establishing the link between an alleged harm of exposure to a substance and a specific injury entails amassing information on materials used in products and about disease patterns, as illustrated by the breast implant, asbestos, and opioids litigations. Given products that create parallel injuries across wide swaths, these challenges have resulted in a shift to aggregate processing for many kinds of torts.28 Because mass torts dominate the docket in multi-district litigation (MDL), readers may not recall that, in 1966, when the federal class action rule was

23 Stephen Daniels & Joanne Martin, Plaintiffs’ Lawyers, Specialization, and Medical Malpractice, 59 VAND. L. REV. 1051, 1072 (2006); Stephen Daniels & Joanne Martin, Where Have All the Cases Gone? The Strange Success of Tort Reform Revisited, 65 EMORY L.J. 1445 (2015). See generally Marc Galanter, The Vanishing Trial: An Examination of Trials andRelatedMatters in Federal and State Courts, 1 J. EMPIRICAL

LEGAL STUD. 459 (2004). 24 One example is a case in which a person alleged a family member had died in a home for older adults. Upon entering, a form stated all disputes were to be channeled into arbitration. Despite objections, the U.S. Supreme Court read the 1925 Federal Arbitration Act to permit that form to preclude access to courts. Marmet Health Care Ctr., Inc. v. Brown, 565 U.S. 530 (2012). 25 About, JUD. HELLHOLES, https://www.judicialhellholes.org/about. 26 AM. TORT REFORM FOUND., JUDICIAL HELLHOLES 2022/23, at i (2022), https://www.judicialhellholes.org/ reports/2022-2023/2022-2023-executive-summary [https://perma.cc/47GJ-TBEW]; AM. TORT REFORM

FOUND., JUDICIAL HELLHOLES 2023/24, at i (2023), https://www.judicialhellholes.org/wp-content/uploads/ 2023/12/ATRA_JH23_FINAL-1.pdf [https://perma.cc/8DFA-JGNJ]. 27 JUDICIAL HELLHOLES 2022/23, supra note 26, at 1; JUDICIAL HELLHOLES 2023/24, supra note 26, at 1. 28 I map the analytic shift and the multiple means of aggregation in From “Cases” to “Litigation,” 54 LAW & CONTEMP. PROBS. 5 (1991), also published by RAND, INSTITUTE FOR CIVIL JUST. (1991).

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revamped to widen opportunities to proceed as a class, the rule drafters’ notes included a comment that, ordinarily, tort litigationwouldnot be appropriate for class certification.29

2 From “Cases” to “Litigation”

I unpack more of that thinking to illustrate the importance of the contributions that Deborah has made to mapping the impact of both individual and aggregate tort litigation. In the early 1960s, Benjamin Kaplan, the principal drafter of the revisions to the class action rule and a law professor at Harvard Law School, discussedwith the members of the committee which was revising the rules that torts would be unlikely to meet the criteria of the proposed revised Rule 23. He explained that individuals could likely pursue their own cases, and that, under the obligation set forth in Erie Railroad Co. v. Thompkins to use state law, differing legal rules would need to be applied.30 Kaplan proposed to the drafting committee that it note:

A “mass accident” resulting in injuries to numerous persons is on its face not appealing for a class action because of the likelihood that significant questions, not only of damages but of liability and defenses to liability,would be present, affecting the individuals in differentways. In these circumstances an action conducted nominally as a class action would degenerate in practice into multiple lawsuits separately tried.31

29 FED. R. CIV. P. 23(b)(3) advisory committee’s note to 1966 amendment. 30 Resources for information on the 1960s drafting come from the Administrative Office of the U.S. Courts, which posted a subset of materials from the Rules Committees on its website, including rules suggestions and comments, committee reports, and meeting minutes. Records and Archives of the Rules Committees, U.S. CTS., https://www.uscourts.gov/rules-policies/records-and-archives-rules- committees [https://perma.cc/24CU-5A5y]. In addition, I reviewed unpublished materials then- located in boxes housed in the late 1980s at the National Records Center in Record Group No. 116, Accession No. 82-0028. Thereafter, the Congressional Information Service (CIS) put some National Archive Records onmicrofiche. In 2014, the Harvard Law Library made available Benjamin Kaplan’s papers in its Special Collections. See Papers of Benjamin Kaplan, Reporter, Advisory Committee on Civil Rules, 1961–1965 [hereinafter Kaplan Papers] (onfile withHarv. L. Sch. Libr., Historical & Special Collections). Some, but not all, of thememos include notations that theywere co-authored byAl Sacks, also a Harvard Law Professor and the Associate Reporter to the Advisory Committee. Not all of the materials are dated. The quote comes from Transcript of the Oct. 31-Nov. 2, 1963 Advisory Comm. on Civil Rules Meeting, Discussion of Rule 23-Topic EE, pages 1–85, at 5, Kaplan Papers, Box 81, Folder 7 [hereinafter Advisory Committee 1963 Transcript]. 31 Advisory Committee 1963 Transcript, supra note 30. For additional discussion of the lessons to be gleaned from these archivedmaterials, see Judith Resnik, “Vital” State Interests: From Representative Actions for Fair Labor Standards to Pooled Trusts, Class Actions, and MDLs in the Federal Courts, 165 U. PA. L. REV. 1765 (2017); and Judith Resnik, Reorienting the Process Due: Using Jurisdiction to Forge

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John Frank, a committeemember, responded that hewas “unpersuadably opposed to the use of the class action in themass tort situation.”32 Frankwas also of the view that rather than include opportunities for consumers to be part of class actions (today’s Rule 23(b)(3)), the new rule should be limited to civil rights claims,33 ofwhich hewas a committed proponent.34 Kaplan replied that narrowing the reach of the proposed class action rule would be “so retrograde a move” as to prevent publication of the draft.35

Whether Kaplan wanted to mollify an adamant committee member or believed torts were not a good fit for class treatment I do not know.36 Kaplan wrote to Frank that he toowas “anxious to keep [mass accidents] out.”37 As he explained, it “seems to me that it would strain interpretation to say that particular actions by injured parties in a mass accident will ‘impair or impede the ability of the other members to protect their interests;’ th[is] clause is redolent of claims against a fund.”38 The result was that what became a committee note accompanying Rule 23(b)(3) stated that “a ‘mass accident’ . . . is ordinarily not appropriate for a class action . . . .”39

In subsequent published comments, Kaplan did not suggest that that doing sowas animated by legal barriers but by practical problems. Indeed, Kaplan acknowledged that Rule 23(b)(3) entailed more generally the “dilution of procedural safeguards,”40

but thought it was not problematic. Kaplan discussed “litigious situations affecting

Post-Settlement Relationships Among Litigants, Courts, and the Public in Class and Other Aggregate Litigation, 92 N.Y.U. L. REV. 1017 (2017). 32 Letter from JohnP. Frank to BenjaminKaplan 2–3 (Jan. 21, 1963), KaplanPapers, supranote 30, Box 79, Folder 2. 33 Advisory Committee 1963 Transcript, supra note 30, at 8–10, 20 (comments by John P. Frank.) Frank argued the potential for “fraud,”with defendants trying to buy off plaintiffs’ attorneys to cut off future claims. Id. at 9. 34 For example, when teaching at Yale Law School, Frank joined Thomas Emerson in organizing a brief in 1949 on behalf of 189 law professors supporting the integration of law schools. Brief for Petitioner at 1–4, Sweatt v. Painter, 339 U.S. 629 (1950) (No. 44). 35 Advisory Committee 1963 Transcript, supra note 30, at 10. 36 Kaplan stated that he was not arguing a “wild appeal to bring in mass accidents,” but sought a flexible rule that permitted judges to decide what kinds of cases fell within it. Id. at 10, 11, 12. 37 Letter from Benjamin Kaplan to John P. Frank (Feb. 7, 1963), Kaplan Papers, supra note 30, Box 79, Folder 6. 38 Id. 39 FED. R. CIV. P. 23(b)(3) advisory committee’s note to 1966 amendment, reprinted in 39 F.R.D. 69, 103 (1966). 40 Benjamin Kaplan, ContinuingWork of the Civil Committee: 1966 Amendments of the Federal Rules of Civil Procedure (I), 81 HARV. L. REV. 356, 390 (1967) [hereinafter Kaplan, Continuing Work]; see also Benjamin P. Kaplan, Comments at the Proceedings of the Twenty-Eighth Annual Third Circuit Judicial Conference: The Impact of the Electrical Anti-Trust Cases Upon Federal Civil Procedure, 39 F.R.D. 375, 513–18 (1965).

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numerous persons ‘naturally’ or ‘necessarily’ [which] called for unitary adjudica- tion,”41 and those involving “individual preference,”42 for which an opt-out would be provided. Class treatment was not needed “where the stake of each member bulks large and his will and ability to take care of himself are strong.”43 These comments reflect that, at the time, the contingency fee system seemed up to the task of enabling individuals alleging tort injuries to pursue claims individually. Moreover, defendants and their insurance companies appeared to have sufficient funds to cover any dollars awarded in incidents involving large numbers. (The examples at the time of mass accidentswerefires andairplane crashes, rather than today’s products alleged toharm tens of thousands.) Further, to include torts might have prompted opposition from contingent fee attorneys.44 Given the rule-drafters’ ambitions, tort cases were not a priority for which they wanted to take more political risks.

In addition, another exemplar of damage actions—antitrust cases—was on the agenda of a different judicial committee, the Coordinating Committee for Multiple Litigation in the United States District Courts. That Committee was charged by the Judicial Conference in the 1960s “with developingmethods for expediting” such “big” cases.45 Itswork became the source of the 1968MDL legislation.46Members of the two committeesmet in 1963.47 As discussed in a transcribedmeeting and amemorandum in 1963, the committees did not view Rule 23 changes as the only vehicle for dealing with the challenges that mass accidents posed for the federal courts.48

41 Kaplan, Continuing Work, supra note 40, at 386. 42 Id. at 391. Kaplan explained that the rule still permitted individuals to opt out, even when their stakes are “so small as to make a separate action impracticable.” 43 Id. 44 As Kaplan wrote in 1962, “If the claim is fairly large, then, at least if a contingent-fee arrangement is available, there is no need for the individual claimant to resort to a class action in order to get his lawyer properly paid.” Class Actions – Some Further Thoughts 1 (Aug. 1962), Kaplan Papers, supra note 30, Box 75, Folder 5, at 11–12. 45 Resnik, From “Cases” to “Litigation,” supra note 28, at 29–30 & n.112; see also Andrew D. Bradt, “A Radical Proposal”: The Multidistrict Litigation Act of 1968, 165 U. PA. L. REV. 831, 838 (2017). 46 Resnik, From “Cases” to Litigation, supra note 28, at 29–30; see also Andrew D. Bradt, Something Less and Something More: MDL’s Roots as a Class Action “Alternative,” 165 U. PA. L. REV. 1711 (2017). 47 See Completion of theWork of CommitteeMeeting of October 32-November 2, 1963,Memorandum from Benjamin Kaplan & Al Sacks to the Chairman andMembers of the Advisory Committee on Civil Rules, Topic EE Class Actions, at 4–8 (Dec. 2, 1963),microformed on CIS No. CI-7104 (Cong. Info. Serv.). That memo reported on the “special meeting” with members of the Coordinating Committee. 48 Reportedwas thatmembers of the Coordinating Committee did not think thatmass accidents ought to be absolutely excluded fromRule 23. Id. at 5. Rather, “no single device . . . [could] be expected to ‘solve’ the questions of procedure and management posed by massive litigation affecting numerous parties.” Id. at 4. Thus, “a variety of devices” needed to be invented, and rather than “stiff rules,” “play in the joints” was “imperatively required.” Id.; see also Bradt, “A Radical Proposal,” supra note 45, at 866.

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Now, decades later, we have learned that the aggregate structure that the drafters created with civil rights litigants and an array of consumers inmind could not only be used by tort plaintiffs, but was also needed for them. Lessons on the potential use of aggregation for torts cases came from another form of litigation—bankruptcy. As the 1987 ICJ Trends in Tort Litigation report had noted, A.H. Robins (the defendant in the Dalkon Shield litigation) had filed for bankruptcy. Johns Manville, an asbestos manufacturer, did as well; given the pending tort lawsuits with plaintiffs as potential creditors, these companies brought tort claimants into such proceedings, which taught judges and lawyers that aggregating tort claims was possible, even if differences among claimants were flattened when they were grouped together in classes of creditors.49 To handle the diversity within such groups, lawyers and judges in bank- ruptcy, in class action settlements, and other aggregates invented new institutions —“claims facilities”—which resembled insurance companies making payments and mini-court systems resolving individual post-liability disputes.

Further, as “mass torts” became a litigation shorthand, the idea of one-on-one tort plaintiffs and their lawyers operating in tandem gave way to a cohort of co- claimants, represented by Plaintiff Steering Committees (PSCs) dealing collectively with defense lawyers in search of comprehensive settlements—so called “global peace.”50 I was a litigator myself in one large MDL, and thereafter, when writing about the issues, Deborah Hensler, Dennis Curtis, and I distinguished “Individually- Retained Plaintiffs’Attorneys” (IRPAs) fromPSC lawyers and argued the possibility of using the resourceswithin such aggregates to support individualized representation, either for preparation for liability hearings or when remedies relied on information from claimants.51

49 See Deborah R. Hensler, Asbestos Litigation in the United States: Triumph and Failure of the Civil Justice System, 12 CONN. INS. L.J. 255 (2005); Harvey J. Kesner, Future Asbestos Related Litigants as Holders of Statutory Claims Under Chapter 11 of the Bankruptcy Code and Their Place in the Johns- Manville Reorganization, 62 AM. BANKR. L.J. 69, 71 (1988); Georgene M. Vairo, The Dalkon Shield Claimants Trust: Paradigm Lost (or Found), 61 FORDHAM L. REV. 617 (1992); Edward J. Janger, Aggre- gation and Abuse: Mass Torts in Bankruptcy, 91 FORDHAM L. REV. 362 (2022). 50 Judith Resnik, Partial “Global Peace”: Federalism and the Long Tail of Remedies in Opioid Liti- gation, 70 DEPAUL L. REV. 407 (2020). 51 Resnik, Curtis & Hensler, Individuals Within the Aggregate, supra note 9; see also Dennis E. Curtis & Judith Resnik, Contingency Fees inMass Torts: Access, Risk and the Provision of Legal ServicesWhen Layers of LawyersWork for Individuals and Collectives of Clients, 47 DEPAUL L. REV. 425 (1998); In re San Juan Dupont Plaza Hotel Fire Litig., 111 F.3d 220 (1st Cir. 1997); In re Thirteen Appeals Arising Out of San JuanDupont PlazaHotel Fire Litig., 56 F.3d 295 (1st Cir. 1995); In reNineteenAppeals ArisingOut of San Juan Dupont Plaza Hotel Fire Litig., 982 F.2d 603 (1st Cir. 1992).

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3 “Global Peace”: Corporate Defendants as the Champions of Aggregation

While much of the discussion of class actions focused on their utilities for plaintiffs, acceptance of aggregate processing was pioneered in the 1940s and 1950s by banks seeking ways to aggregate claims. License to do so came from the U.S. Supreme Court when banks sought to obtain judicial confirmation that their investments had been prudent and thereby preclude trust beneficiaries from bringing challenges to their decisions. In Mullane v. Central Hanover Bank & Trust Co.,52 the Supreme Court approved New York’s innovation—a kind of defendant class action by which banks periodically sought a kind of declaratory action (“settling accounts”) that, given the law of res judicata, would block any unhappy beneficiary seeking subsequently to allege investments failures.53 Mullane may, in hindsight, seem obvious, but at the time, the Court had to leap over distinctions between “in rem” and “in personam”

jurisdiction to expand the ability of states constitutionally to bind individuals outside their physical boundaries. The Mullane Court upheld what was, in today’s terms, nation wide jurisdiction of New York courts over the trust and its beneficiaries. The Court’s decision tempered the ruling by holding that the statutory method of providing notice violated the Constitution.54 Writing for the Court, Justice Jackson explained the “vital interest of the State” in enabling pooling of assets and preclusion of liability.55 He read due process not to impose “impossible or impractical obstacles” to producing a decision about the banks’ prudence, while also requiring an “op- portunity” for those affected to know so as to be able to present objections.56

Mullane provided a constitutional path to large-scale resolutions by courts whose legitimacy to bind absentees and treat them as parties rested on telling a

52 339 U.S. 306 (1950). For a detailed account of the New York State Legislature’s practices that led to the pivotal decision of Mullane, see Judith Resnik, Fairness in Numbers: A Comment on AT&T v. Concepcion, Wal-Mart v. Dukes, and Turner v. Rogers, 125 HARV. L. REV. 78, 134–42 (2011). 53 N.Y. BANKING § 100-c (repealed 1986; codified as revised at N.Y. BANKING § 100-c (2008)). Several other states authorized pool trusts without creating this form of accounting. John Leubsdorf, Unmasking Mullane: Due Process, Common Trust Funds, and the Class Action Wars, 66 HASTINGS L.J. 1693, 1708 (2015). But unlike the 1966 version of Rule 23, the N.Y. statute provided that judges appoint lawyers to serve as guardians ad litem. As the name of the case reflects, Kenneth Mullane was designated to represent what was functionally one subclass, the inter-vivos beneficiaries, while the other appointee, James Vaughan, assigned the testamentary beneficiaries, did not contest the procedures. N.Y. BANKING § 100-c(12). 54 Mullane, 339 U.S. at 312–13, 320. 55 Id. at 313. 56 Id. at 313–14. The reminder for those steeped in contemporary state action requirements is that the dispute was between private parties, enlisting the state’s courts to settle the accountings.

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subset that their interests were being determined through a representative struc- ture. Further, Mullane’s insistence on notice put the process before the public.57

Mullane’s potential was realized in the 1966 revisions to Rule 23, this time in service of other “interests” including civil rights claimants and consumers.58 Rule 23’s cen- tral function—displacing once-conventional constitutional wisdom about the legal- ity of binding absent, non-participatory, non-directly-consenting individuals—has, per above, migrated across the litigation spectrum.

As courts aggregated tort claims in bankruptcy, some tortMDLs came into being, and more individuals alleged injuries from the same products or events, commen- tators and judges began to question the presumption against mass torts in the Advisory Committee’s Rule 23 note. Judges began to certify mass tort class actions. Some were seen as fitting the mold of a (b)(3) class when damages were sought and others, on occasion, by showing that the remedies for such injuries would outstrip resources and hence a (b)(1) class (protecting rights-holders in a “limited fund”) could well have application. By the 1980s, federal district judges had certified mass tort claims in a range of cases, including famously the Agent Orange litigation.59

In 1988, the Judicial Conference of the United States recognized a role for tort aggregationwhen it “approved in principle the creation of Federal jurisdiction based on minimal diversity to consolidate in the Federal courts multiple litigation in State and Federal Courts involving personal injury or property damage arising out of a single event or occurrence.”60 In 1991, the Judicial Conference endorsed a report of the Ad Hoc Committee on Asbestos Litigation that recommended aggregate treat- ment of the pending asbestos cases.61 The American Law Institute likewise became a

57 I have also argued the need to have a “third phase”—after certification and settlement—so as to keep all the participants involved during the remedial phase, when at times new conflicts emerge. See Resnik, Reorienting the Process Due, supra note 31, at 1052–67. 58 See Resnik, From “Cases” to “Litigation,” supra note 28, at 8–22; David Marcus, Flawed but Noble: Desegregation Litigation and Its Implications for the Modern Class Action, 63 FLA. L. REV. 657, 660–62 (2011). 59 In re “AgentOrange” Prod. Liab. Litig., 100 F.R.D. 718 (E.D.N.Y. 1983), aff’d, 818 F.2d 145 (2d Cir. 1987), cert. denied sub nom.Pickney v. DowChemical, 484U.S. 1004 (1988). See generally PETER H. SCHUCK, AGENT

ORANGE ON TRIAL: MASS TOXIC DISASTERS IN THE COURTS (1987). Other examples of certification of mass torts came from asbestos claims. See Jenkins v. Raymark Indus., Inc., 782 F.2d 468 (5th Cir. 1986), reh’g denied, 785 F.2d 1034 (5th Cir. 1986). 60 See REPORT OF THE PROCEEDINGS OF THE JUDICIAL CONFERENCE OF THE UNITED STATES 22 (Mar. 15, 1988); Multiparty, Multiforum Jurisdiction Act of 1989: Hearing on H.R. 3406 Before the Subcomm. on Courts, Intellectual Prop. & the Admin. of Justice of the H. Comm. on the Judiciary, 101st Cong. 17 (1989) (prepared statement of Hon.WilliamW. Schwarzer on behalf of the Judicial Conference of the United States). 61 See Linda Greenhouse, Aid Sought from Congress to Ease Asbestos Caseload, N.Y. TIMES (Mar. 13, 1991), http://www.nytimes.com/1991/03/13/business/aid-sought-from-congress-to-ease-asbestos- caseload.html [https://perma.cc/PU4P-SJ65].

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proponent, first through a project on “complex litigation” in the 1980s and then by endorsing the “principles of aggregation” in 2010.62

The debates that framed the drafting of Rule 23 have also continued in the courts. In Amchem v. Windsor Products, Inc. and in Ortiz v. Fibreboard Corp., Justices on the Supreme Court disagreed about the tradeoffs between resolution via settlement, deference to district courts dealing with large-scale aggregates, and commitments to individualization. Those differences echoed in Harrington v. Purdue Pharma L.P.— the 2025 opiate bankruptcy in which a 5-4 Court rejected a settlement that bound entities and individualswho had not formally consented to its terms.63 To knowmore about the variegated landscape of class actions, I commend rereading Class Action Dilemmas: Pursing Public Goals for Private Gain, a 1999 research project Deborah Hensler led, as well as visiting Stanford’sGlobal Class Action Exchange to learn about aggregate mechanisms around the world.64 Back in the United States, by 2025, whether in or out of bankruptcy (and with or without the “Texas two-step” in which companies spin off a part of the company to wall off liability65), and via class actions andmultidistrict litigations, large-scale aggregation—in state and in federal courts— has become a common means of resolution of mass torts.66

In short, much has changed since we did research in the 1980s for Eye of the Beholder. Moreover, if using the 1966 Committee note on mass torts as a baseline against which to measure change, the conceptual shift happened quickly. As I have explained in an essay on the revamping of constitutional assumptions that enabled aggregation in the federal courts, the 1938 Fair Labor Standards Act (FLSA)67 had

62 COMPLEX LITIGATION PROJECT (AM. L. INST., Tentative Draft No. 2, 1990); AM. L. INST., REPORTERS’ STUDY: APPROACHES TO LEGAL AND INSTITUTIONAL CHANGE, 383–440 (1991); AM. L. INST., PRINCIPLES OF THE LAW OF AGGREGATE

LITIGATION (2010); see also Judith Resnik, Compared to What?: ALI Aggregation and the Shifting Con- tours of Due Process and of Lawyers’ Powers, 79 GEO. WASH. L. REV. 628, 630 (2011). 63 Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997); Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999); Harrington v. Purdue Pharma L.P., 603 U.S. 204 (2024). 64 DEBORAH R. HENSLER, NICHOLAS M. PACE, BONNIE DOMBEY-MOORE, ELIZABETH GIDDENS, JENNIFER GROSS & ERIK MOLLER, CLASS ACTION DILEMMAS: PURSING PUBLIC GOALS FOR PRIVATE GAIN (1999); see also Global Class Action Exchange, STAN. L. SCH., https://globalclassactions.law.stanford.edu; Deborah R. Hensler, Foreword: The Global Expansion of Class Actions: Power, Politics and Procedural Evolution, in THE CAMBRIDGE

HANDBOOK OF CLASS ACTIONS, at xvii (Brian T. Fitzpatrick & Randall S. Thomas eds., 2021). 65 See In re LTL Mgmt., LLC, 64 F.4th 84 (4th Cir. 2023). 66 See, e.g., Elizabeth Chamblee Burch & Abbe R. Gluck, Plaintiffs’ Process: Civil Procedure, MDL, and a Day in Court, 42 REV. LITIG. 225 (2023); D. Theodore Rave, Management and Judging in Multidistrict Litigation, 42 REV. LITIG. 291 (2023); Elizabeth J. Cabraser & Samuel Issacharoff, The Participatory Class Action, 92 N.Y.U. L. REV. 846 (2017). 67 Fair Labor Standards Act (FLSA), Pub. L. No. 75-718, § 16(b), 52 Stat. 1060, 1069 (1938) (codified as amended at 29 U.S.C. §§ 201-19).

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seemed to provide a capacious invitation for representative litigation. But federal judges in the 1940s insisted that the FLSA’s authorization for employees to file on behalf of “other employees similarly situated”68 could not, constitutionally, permit lawsuits to proceed without record evidence of individuals’ personal consent.69 That lower court caselaw’s loyalty to individual participation rather than to interest rep- resentation underscores the distance traveled in practice and in constitutional interpretation that, by and large, is now taken for granted.70 While conceptually one could have open-ended as contrasted with binding outcomes, litigants and jurists have embraced the utility of generating group-based outcomes that bind absentees who have not affirmatively appeared in court in class actions.71 “Opt out” is the shorthand, rather than requiring “opt in.”

I need to add that the U.S. Supreme Court has been uneasy about class certifi- cation in many contexts and has limited class certification opportunities through interpretations of Rule 23, including in cases involving securities and employment discrimination.72 Members of the Court have also raised questions about the pro- priety of group-based remedies for detained immigrants and prisoners.73 Moreover, in 2025, the assault on government and regulation aims to undermine both liability rules and the means to pursue remedies.

Yet, as discussed, class actions are but one of themeans to aggregate, and federal courts are but one of several venues. Even as the Supreme Court’s decisions in the late 1990s in Amchem and in Ortiz made some forms of large-scale mass tort class actionsmore difficult,74 commitments to aggregationwere sufficient formass torts to find a home inMDLs, which I have discussed andwhose genesis also bears reflection. A mix of rising caseloads post-World War II and a spate of antitrust cases prompted the federal judiciary’s leadership to argue that courts should take control of

68 Id. § 16(b); 29 U.S.C. § 216(b). I explain more of the ideas framing the FLSA litigation in Resnik, “Vital” State Interests, supra note 31. 69 See, e.g., Wright v. U.S. Rubber Co., 69 F. Supp. 621, 624 (S.D. Iowa 1946). 70 A consistent critic has been MARTIN H. REDISH, WHOLESALE JUSTICE: CONSTITUTIONAL DEMOCRACY AND THE

PROBLEM OF THE CLASS ACTION LAWSUIT 5–15 (2009). 71 A caveat comes from the ruling that federal courts cannot exercise jurisdiction over absent class action plaintiffs seekingmonetary reliefwithout their assent. Phillips PetroleumCo. v. Shutts, 472 U.S. 797, 811–12 (1985). 72 A first famous example was reading Rule 23 to require notice at a cost that made pursuit of the alleged securities violations impossible. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974). Hurdles to establishing “commonality” came in Wal-Mart Stores, Inc., v. Dukes, 564 U.S. 338 (2011). 73 See, e.g., Jennings v. Rodriguez, 583 U.S. 281 (2018); Brown v. Plata, 563 U.S. 493, 550 (2011) (Scalia & Thomas, JJ., dissenting). 74 Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997); Ortiz v. Fireboard Corp., 527 U.S. 815 (1999).

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“protracted cases” or those cases would “threaten the judicial process itself.”75 In the early 1960s, after the United States had successfully pursued antitrust claims against electrical equipment manufacturers, “more than 1,800 separate damage actions were filed in 33 federal district courts.”76 The Judicial Conference created the “Co-ordinating Committee for Multiple Litigation of the United States District Courts,” noted above as having met with the Rules Advisory Committee and comprised of nine federal judges charged with supervising nationwide discovery in these damage antitrust cases, in part through “uniform” pretrial orders.77

That Committee’s work resulted in the Multidistrict Litigation Act of 1968,78

which incorporated a different method of coordination: the transfer of all pending cases to a single judge. Akin to the 1966 class action rule, the 1968 MDL legislation created amandatory pre-trial aggregation, with no personal rights of consent during that phase of the litigation. But because cases were to be “remanded” to the origi- nating courts at the conclusion of the “pretrial proceedings,”79 MDL appeared to provide only a temporary arrangement and (unlike Rule 23) retained the convention of individual lawyers representing individual plaintiffs.

The metaphor of “war” on litigation has not been limited to torts, as commen- tators have discussed the “class action wars.”80 Yet when first crafted, the MDL statute, promoted by federal judges, was read as a managerial effort to deal with pending cases. Unlike the controversy surrounding Rule 23, MDLs garnered little attention until recently.81 The divergent responses reflected what once were the differing ambitions of the two provisions. Class action revisions aimed to enable litigation, as Kaplan had stressed, for the benefit of “people who individually would

75 JUD. CONF. OF THE U.S., PROCEDURE IN ANTI-TRUST AND OTHER PROTRACTED CASES, 13 F.R.D. 62, 64 (1953); see also Judith Resnik, Trial as Error, Jurisdiction as Injury: Transforming the Meaning of Article III, 113 HARV. L. REV. 925, 938 (2000). 76 TRANSFER OF PRETRIAL PROCEEDINGS IN MULTIDISTRICT LITIGATION, H.R. REP. NO. 90-1130, at 2 (1968), as reprinted in 1968 U.S.C.C.A.N. 1898, 1899, 1903. 77 Phil C. Neal & Perry Goldberg, The Electrical Equipment Antitrust Cases: Novel Judicial Adminis- tration, 50 A.B.A. J. 621, 623 (1964). 78 Multidistrict Litigation Act of 1968, Pub. L. No. 90-296, 82 Stat. 109. 79 28 U.S.C. § 1407(a). The “remand” requirementwas loosely enforced until 1998, when the Supreme Court read the statutory text to require sending cases back for trials. Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 34 (1998). 80 Arthur R. Miller, An Overview of Federal Class Actions: Past, Present and Future, 4 JUST. SYS. J. 197, 197 (1978). 81 See, e.g., Elizabeth Chamblee Burch, Monopolies in Multidistrict Litigation, 70 VAND. L. REV. 67 (2017); Howard M. Erichson, Foreword, 31 SETON HALL L. REV. 877 (2001). Moreover, the 2017 congres- sional effort to restrict class actions included proposed limits on MDLs as well. See Fairness in Class Action Litigation and Furthering Asbestos Claim Transparency Act of 2017, H.R. 985, 115th Cong.

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bewithout effective strength to bring their opponents into court at all.”82MDL, on the other hand, was assumed to be only a vehicle to expedite cases already filed, and thereby to protect the judiciary and—to some extent—defendants at risk of repeated discovery requests. In contrast, class actions helped sets of new plaintiffs—school- children, prisoners, consumers, and employees—make their way into the federal courts. But economies of scale beget interest in “global peace” that requires enabling new filings within pending MDLs. Whether as “tag-alongs” or sitting on the sidelines ready to be wrapped into a settlement, MDLs inspire new filings. As in other forms of aggregation, some defendants have pushed back against the use of MDL and argued that, like class actions, this form needs to be damped down and limited.83

Moreover, in its first few decades, the MDL panel appeared to share the Rule 23 Advisory Committee’s skepticism about tort aggregation.84 The (in)famous example is asbestos. As caseload filings mounted in federal court, the Judicial Panel on Mul- tidistrict Litigation (JPML) repeatedly rejected (in 1977, 1980, 1986, and 1987) requests to assign the cases to a single judge.85 The JPML’s reasons sounded like the Rule 23 drafters’ note—that cases lacked the requisite commonality and that the existing litigation system sufficed.86 But, in 1990, Chief Justice Rehnquist “appointed an Ad Hoc Committee on Asbestos Litigation,” which called for a statutory solution, but in the interim, MDL treatment.87 The MDL Panel responded the next year. Quoting the Ad Hoc Committee’s description of problems such as “long delays. . . the same issues [being] litigated over and over. . . transaction costs exceed[ing] the victims’ recovery by nearly two to one and the. . . exhaustion of assets,” the Panel assigned all 26,639 pending cases from eighty-seven federal districts to a federal judge in Pennsylva- nia.88 Once again, Deborah Hensler, Molly Selvin, and other ICJ researchers were at

82 Benjamin Kaplan, A Prefatory Note, 10 B.C. INDUS. & COM. L. REV. 497, 497 (1969). 83 See, e.g., Fairness in Class Action Litigation and Furthering Asbestos Claim Transparency Act of 2017, H.R. 985, 115th Cong., § 105. Another potential vehicle for control is the Federal Rules of Civil Procedure. In 2024, Rule 16.1 was added to authorize what many believe already existed—judicial management of MDLs. See JUD. CONF. OF THE U.S., STANDING COMMITTEE REPORT TO THE JUDICIAL CONFERENCE 12 (Sept. 2024). 84 Bradt’s account suggests that the decisions of the panel were not in keepingwith the ambitions of the Coordinating Committee. See Bradt, “A Radical Proposal,” supra note 45, at 863–65. 85 See Hon. Eduardo C. Robreno, The Federal Asbestos Product Liability Multidistrict Litigation (MDL-875): Black Hole or New Paradigm?, 23 WIDENER L.J. 97, 111 & n.80 (2013). 86 See, e.g., In reAsbestos &Asbestos InsulationMaterial Prods. Liab. Litig., 431 F. Supp. 906, 909–11 (J. P.M.L. 1977) (per curiam). As noted in the opinion, the parties objected, and the Panel stated that, while not determinative, their views were relevant. Id. 87 SeeADMIN. OFF. OF THE U.S. CTS., REPORT OF THE PROCEEDINGS OF THE JUDICIAL CONFERENCE OF THE UNITED STATES 33 (Mar. 12, 1991), http://www.uscourts.gov/sites/default/files/reports_of_the_proceedings_1991-03_0.pdf [https://perma.cc/MY4Z-5V7D]. 88 In re Asbestos Prods. Liab. Litig. (No. VI), 771 F. Supp. 415, 416, 419 (J.P.M.L. 1991).

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the forefront in documenting the challenges, costs, and unfairness of asbestos litigation.89

Fast forward to the 2020s. Combat Arms 3M Earplug Litigation (CAEv2) alleged that faulty earplugs provided by the 3M Corporation to the U.S. military resulted in impaired hearing for U.S. soldiers. In April of 2019, the Judicial Panel onMultidistrict Litigation consolidated some 700 lawsuits in the Northern District of Florida. Thereafter, the presiding judge issued an order facilitating “direct filing” that enabled an easy route for individuals or counsel to seek inclusion.90 In 2020, some 202,000 filings became part of CAEv2; about 84,000 were added in 2021 and 34,000 in 2022. Efforts were made unsuccessfully to flip claims into bankruptcy. Thereafter, when rejecting that effort in In re Aearo Technologies,91 the bankruptcy judge noted that, in 2023, when 255,500 actions were pending in that MDL, it was the “largest in history. . . and represents a staggering 30 % of cases currently pending in the federal district courts.”92

The size of the litigation was such that, had the Administrative Office (AO) of the U.S. Courts included the individual Earplug filings in its annual filing trend lines, it would have distorted an understanding of the federal court docket. In 2020, when more than 202,000 cases were part of the 3M Earplug MDL, other civil filings totaled

89 An early account comes from DEBORAH R. HENSLER, WILLIAM L.F. FELSTINER, MOLLY SELVIN & PATRICIA A. EBENER, ASBESTOS IN THE COURTS: THE CHALLENGE OF MASS TOXIC TORTS (1985). The ICJ did much more research on these issues. See, e.g., JAMES S. KAKALIK, PATRICIA A. EBENER, WILLIAM L.F. FELSTINER, GUS HAGGSTROM & MICHAEL G. SHANLEY, VARIATION IN ASBESTOS LITIGATION COMPENSATION AND EXPENSES (1983); MOLLY SELVIN & LARRY PICUS, THE DEBATE OVER JURY PERFORMANCE: OBSERVATIONS FROM A RECENT ASBESTOS CASE (1986); STEPHEN J. CARROLL, DEBORAH R. HENSLER, MICHELLE WHITE & JENNIFER GROSS, ASBESTOS LITIGATION IN THE U.S.: A NEW LOOK AT AN OLD

ISSUE (2001); STEPHEN J. CARROLL, DEBORAH R. HENSLER, ALLAN ABRAHAMSE, JENNIFER GROSS, J. SCOTT ASHWOOD, ELIZABETH M. SLOSS & MICHELLE WHITE, ASBESTOS LITIGATION COSTS AND COMPENSATION: AN INTERIM REPORT (2002); Deborah R. Hensler, Fashioning a National Resolution of Asbestos Personal Injury Litigation: A Reply to Professor Brickman, 13 CARDOZO L. REV. 1967 (1992), as reprinted in Deborah R. Hensler, Fashioning a National Resolution of Asbestos Personal Injury Litigation: A Reply to Professor Brickman, RAND (2004); STEPHEN J. CARROLL, DEBORAH R. HENSLER, JENNIFER GROSS, ELIZABETH M. SLOSS, MATTHIAS SCHONLAU, ALLAN

ABRAHAMSE & J. SCOTT ASHWOOD, ASBESTOS LITIGATION (2005); STEPHEN J. CARROLL, LLOYD DIXON, JAMESM. ANDERSON, THOR HOGAN & ELIZABETH M. SLOSS, THE ABUSE OF MEDICAL DIAGNOSTIC PRACTICES IN MASS LITIGATION: THE CASE OF

SILICA (2009); LLOYD DIXON, GEOFFREY MCGOVERN & AMY COOMBE, ASBESTOS BANKRUPTCY TRUSTS: AN OVERVIEW OF

TRUST STRUCTURE AND ACTIVITY WITH DETAILED REPORTS ON THE LARGEST TRUSTS (2010); LLOYD DIXON & GEOFFREY

MCGOVERN, ASBESTOS BANKRUPTCY TRUSTS AND TORT COMPENSATION (2011); LLOYD DIXON & GEOFFREY MCGOVERN, BANKRUPTCY’S EFFECT ON PRODUCT IDENTIFICATION IN ASBESTOS PERSONAL INJURY CASES (2015). 90 Pretrial Order No. 5: Stipulated Order on Procedures for Direct Filing, In re 3M Combat Arms Earplug Prods. Liab. Litig., No. 19-MD-2885 (N.D. Fla. May 6, 2019). 91 In re Aearo Techs., LLC, No. 22-02895 (Bankr. S.D. Ind. June 9, 2023). 92 Id. at 8. In August of 2023, 3M announced it had agreed to a $6 billion dollar settlement of more than 260,000 claims. See Emily Field, 3M Strikes $6B Deal in Combat Earplug Litigation, LAW 360 (Aug. 29, 2023, 9:25 AM EDT), https://www.law360.com/articles/1715917.

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267,767. Thus, as Chief Justice Roberts explained in his year-end report for that year and thereafter in 2021 and 2022, the AO’s analysis of filings trends did not include the Earplug Litigation.93 Most otherMDLs are routinely included; at some points in prior

93 2022 Year-End Report on the Federal Judiciary, SUP. CT. OF THE U.S. 6 (2022) [hereinafter 2022 Year End Report], https://www.supremecourt.gov/publicinfo/year-end/2022year-endreport.pdf; 2021 Year-End Report on the Federal Judiciary, SUP. CT. OF THE U.S. 8 (2021) [hereinafter 2021 Year End Report], https://www.supremecourt.gov/publicinfo/year-end/2021year-endreport.pdf. In 2020, 2021, and 2022, the Chief Justice’s Year-End Reports noted, when discussing filing trends, that new filings in the 3M Combat Arms Earplug Products Liability Litigation (MDL No. 2885) were not included. For example, for the year 2022, the Chief Justice’s report stated:

The federal district courts docketed 274,771 civil cases in FY 2022, 20 percent fewer than the prior year. Once again, an unusually large number offilingswere associatedwith an earplug products liabilitymultidistrict litigation (MDL) . . . which consolidatedmore than 83,654filings in 2021 and 34,410 filings in FY 2022. Excluding those MDL filings, total civil case filings fell eight percent to 240,361.

2022 Year-End Report, supra, at 6. The 2020 Director’s Annual Report similarly excludes 3M filings from its filing trends:

Civil case filings in the U.S. district courts increased 58 percent, going up by 172,704 cases to 470,581. Civil filings per authorized judgeship rose from 440 in 2019 to 695 in 2020. This growth occurred because of more than 200,000 multidistrict litigation (MDL) cases directly filed in a single district alleging that the 3M Company sold its Combat Arms earplugs to the U.S. military without disclosing defects that reduced hearing protection. Excluding these cases, civil filings would have fallen 10 percent this year, mainly in response to the effects of the COVID-19 pandemic.

U.S. District Courts – Judicial Business 2020, U.S. CTS., https://www.uscourts.gov/statistics-reports/us- district-courts-judicial-business-2020. And in 2021, the 3M Earplug filings numbered more than 83, 000, and there were 260,913 total civil filings excluding that group. 2021 Year-End Report, supra, at 8. The 2021 Director’s Annual Report similarly excludes 3M filings from its filing trends:

Civil case filings in the U.S. district courts declined 27 percent, decreasing by 126,014 cases to 344,567. Civil filings per authorized judgeship dropped from 695 in 2020 to 509 in 2021. Last year, civil filings had risen 58 percent because of more than 200,000 multidistrict litigation (MDL) cases directly filed in a single district that asserted that the 3M Company sold its Combat Arms earplugs to the U.S. military without disclosing defects that reduced hearing protection; this year, that district received more than 80,000 of those MDL cases. Excluding these cases, civil filings would have fallen 3 percent this year, mainly because of the effects of the COVID-19 pandemic.

U.S. District Courts – Judicial Business 2021, U.S. CTS., https://www.uscourts.gov/statistics-reports/us- district-courts-judicial-business-2021. As the above quote illustrates, the Chief Justice and the AO, which is the source of data for the Chief Justice’s reports, provided two counts of newfilings– one that included the MDL filings and one that did not – and also calculated the percent change in new filings

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decades, the AO also excluded asbestos and vaginal meshMDL filings from trend line analyses of civil district court filings.94 In short, the transformation in the scale of the form of tort litigation has become a central facet of the judicial docket. In the federal courts, and given the numbers of filings in many MDLs, in some years, MDL filings constitute a third or more of pending cases. (As Deborah Hensler, joined by Jonah Gelbach, has also documented, data on class actions is impoverished.95)

4 Large-Scale Litigations and Lawyerless Litigants

A picture of the courts awash with aggregation needs to be enlarged to include another important facet of the federal docket. In a quarter of the filings, people enter the federal courts lawyerless. Indeed, as Kaplan explained long ago, aggregation is an important form of intra-litigant subsidy that makes resources available to in- dividuals who would not have made it into court otherwise.

Single-file litigants, however, remain in both state and federal courts in cases that involve important issues such as family life, housing, and medical care, and in many instances, parties arewithout attorneys to represent them. In state courts, with a docket dominated by creditors and landlords (as torts have declined), some eighty percent of cases come with one side representing itself.96

The difficulties faced by lawyerless litigants are powerfully mapped through court observations of miserable encounters between ill-equipped judges and in- dividuals.97 Other articles capture the impact of class, the financial barriers of filing fees and assessments, the development of different procedural systems for people

from the previous year using each of these figures. See 2022 year-End Report, supra, at 6. The year runs through the twelve-month period ending on September 30. Id. at 5. 94 For more analysis of trends in federal courts, see Judith Resnik, Seeing “the Courts”: Managerial Judges, Empty Courtrooms, Chaotic Courthouses, and Judicial Legitimacy from the 1980s to the 2020s, 43 REV. LITIG. 193 (2024). 95 Jonah Gelbach & Deborah Hensler, Pulling Back the Curtain on the Federal Class ACTION, J. TORT L. 17, 117–48 (2025). 96 Claire Johnson Raba & Dalie Jimenez, Pay to Plead: Finding Unfairness and Abusive Practices in CaliforniaDebt Collection Cases, REV. BANKING & FIN. L. (forthcoming 2025), https://papers.ssrn.com/sol3/ papers.cfm?abstract_id=4611756. 97 See Anna E. Carpenter, Colleen F. Shanahan, Jessica K. Steinberg & Alyx Mark, Judges in Law- yerless Courts, 110 GEO. L.J. 509, 509–10 (2022); Colleen F. Shanahan, Jessica K. Steinberg, Alyx Mark & Anna E. Carpenter, The Institutional Mismatch of State Civil Courts, 122 COLUM. L. REV. 1471, 1471 (2022); AnnaE. Carpenter, AlyxMark, Colleen F. Shanahan& JessicaK. Steinberg,Foreword: The Field of State Civil Courts, 122 COLUM. L. REV. 1165, 1165 (2022); Justin Weinstein-Toll, Traffic Courts, 112 CALIF. L. REV. 1183 (2024); Judith Resnik, Henry Wu, Jenn Dikler, David T. Wong, Romina Lilollari, Claire Stobb, Elizabeth Beling, Avital Fried, Anna Selbrede, Jack Sollows, Mikael Tessema & Julia Udell, Lawyerless

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with and without lawyers, the specific burdens imposed on prisoners, and the need for major changes.98 Several organizations including the American Law Institute,99

the American Academy of Arts and Sciences,100 and law schools with “justice labs” aim to shape new processes as well as new routes to legal remedies that are less dependent on lawyers and courts.101

5 Documenting The Effects of Gender

The problems of people in court are central to another facet of Deborah Hensler’s work in which I joined—the Ninth Circuit Gender Bias Task Force. In the 1980s, the relatively few women judges founded the National Association of Women Judges (NAWJ), and it joinedwith theNational Organization ofWomen’s Legal Defense Fund to start a program it called the National Judicial Education Program to Promote Equality ofWomen andMen in the Courts (NJEP). The goal was to help judges see that they often shared with defendants in employment discrimination cases an assumption that women ought be focused on their households and that limited opportunities for wage work was to be expected given demands of mothering.102

Famous examples included women prevented from being lower-school teachers if they were pregnant, height and weight requirements for airline staff (then known as “stewardesses” and not “flight attendants”), and much else. State judiciaries took the

Litigants, Filing Fees, Transaction Costs, and the Federal Courts: Learning from SCALES, 119 NW. U. L. REV. 109 (2024). 98 Pamela K. Bookman & Colleen F. Shanahan, A Tale of Two Civil Procedures, 122 COLUM. L. REV. 1183 (2022); Resnik et al., Lawyerless Litigants, supra note 97; Judith Resnik, Class in Courts: Incomplete Equality’s Challenges for the Legitimacy of Procedural Systems, inAGUIDE TO CIVIL PROCEDURE: INTEGRATING CRITICAL LEGAL PERSPECTIVES 132 (Brooke Coleman, Suzette Malveaux, Portia Pedro & Elizabeth Porter eds., 2022). 99 Reimagining Access to Justice: Legal Innovations in Small ClaimsDisputes, AM. L. INST. (Jan. 3, 2025), https://www.ali.org/news/articles/reimagining-access-justice-legal-innovations-small-claims- disputes. 100 Justice: Legal Services for the 21st Century, AM. ACAD. ARTS & SCIS., https://www.amacad.org/project/ making-justice-accessible. 101 See Filing Fairness Toolkit: Simplifying Court Filing for All, LEGAL DESIGN LAB &DEBORAH L. RHODE CTR. ON THE LEGAL PRO. (2023), https://filingfairnessproject.law.stanford.edu/wp-content/uploads/2023/11/ SLS_FilingFairnessProject_FF.pdf; see also Current Projects, ACCESS TO JUST. LAB, https://a2jlab.org/ current-projects; SELF-REPRESENTED LITIG. NETWORK, https://www.srln.org. 102 See generally Deborah R. Hensler & Judith Resnik, Contested Identities: Task Forces on Gender, Race, and Ethnic Bias and the Obligations of the Legal Profession, in ETHICS IN PRACTICE: LAWYERS’ ROLES, RESPONSIBILITIES, AND REGULATIONS (Deborah L. Rhode ed., 2003); Judith Resnik, Asking About Gender in Courts, 21 SIGNS: J. WOMEN CULTURE & SOC’Y 952 (1996).

232 J. Resnik

lead, with New Jersey’s chief justice commissioning the first “gender bias task force” and over two decades more than sixty such reports—authorized by state judiciaries and bar associations—on gender, race and ethnicity resulted.103

The federal courts were slow to become involved; indeed, when first asked, the response was drenched in gender-stereotyping—that federal courts were “naturally without gender,”which translated to assume that, because the federal courts did not do family dissolution and child custody, gender was of little relevance. As I have detailed, “federal family law” exists, even as that name is not regularly applied.Many areas of federal law regulate family life—including ERISA, immigration, bankruptcy, tax, and federal Indian law;moreover, women are litigants, witnesses, lawyers, staff, and jurists in areas of law that are not “gender-coded.”104 In the 1990s, a group of women helped persuade the Ninth Circuit to take up the issue of gender bias, and the Chief Judge (then Clifford Wallace) appointed me as a member of the circuit’s task force. I in turn recruited Deborah to take the lead in survey research. The law school at USC, where both Deborah and I were teaching, and RAND made substantial con- tributions in terms of research support.

The result was another pathbreaking survey and report with hundreds of pages published by the Ninth Circuit and in the Southern California LawReviewwith follow up essays in the Stanford Law Review.105 The ambitions were to break out of the gender-coding that equated all of women’s legal problems with family life. We developed a survey that asked about processes in courts and in social security claims. We sought outmagistrate and bankruptcy judges, district and appellate court judges, and lawyers to learn about experiences in and out of courtrooms and in chambers, where less structured managerial exchanges could take place. In addition, we asked survey respondents how they thought about their working lives. We also looked at

103 See, e.g., Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971); Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (2018). 104 See generally Judith Resnik, “Naturally” Without Gender: Women, Jurisdiction, and the Federal Courts, 66 N.Y.U. L. REV. 1682 (1991). One example of federal law's involvement with family life is Haaland v. Brackeen, 599 U.S. 225 (2023), addressing the Indian Child Welfare Act. 105 See THE EFFECTS OF GENDER IN THE FEDERAL COURTS: THE FINAL REPORT OF THE NINTH CIRCUIT GENDER BIAS TASK FORCE, reprinted in 67 S. CAL. L. REV. 745 (1994) [hereinafter THE EFFECTS OF GENDER IN THE FEDERAL COURTS]; see also Procter Hug, Jr., Marilyn L. Huff & John C. Coughenour, Ninth Circuit: The Gender Bias Task Forces, 32 U. RICH. L. REV. 735 (1998); Barbara Allen Babcock, Introduction: Gender Bias in the Courts and Civic and Legal Education, 45 STAN. L. REV. 2143 (1993). Other circuits later commissioned reports. REPORT OF THE PROCEEDINGS OF THE JUDICIAL CONFERENCE OF THE UNITED STATES 64 (1992) (discussing “Bias in the Federal Judiciary”); Hon. Judith M. Billings & Hon. Brenda Murray, Introduction to the Ninth Circuit Gender Bias Task Force Report: The Effects of Gender, 67 S. CAL. L. REV. 739 (1993). Members of the Task Force included the Honorable John C. Coughenour, the Honorable Proctor J. Hug, Jr., the Honorable Marilyn H. Patel, and attorneys TerryW. Bird, M. Margaret McKeown, and Henry Shields. THE EFFECTS OF GENDER IN THE FEDERAL COURTS, supra.

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several areas of law. Two years later, after analyses of hundreds of responses by judges, lawyers, administrative law judges in social security, and after reports from subcommittees on criminal law, federal benefits, immigration, employment, federal Indian law, after focus groups, and after navigating pushback from some quarters, we had punchlines.

In thewords of the Chief Judge of the Circuit (joined by the judgewho chaired the Circuit’s Gender Bias Task Force, and a chief judge in a district court), “gender counts.”106Womenwere “virtually unrepresented in key positions in some districts.” Moreover, sixty percent of female practitioners surveyed reported “unwanted sex- ual advances” from colleagues or opposing counsel or court staff, including judges. Not surprisingly, women andmen did not have the same view of when “gender bias” existed.107 The report, The Effects of Gender, examined challenges built into sub- stantive law; one example came from social security questions that sought to learn whether a personwith a disability can dowagework for a certain number of hours a day. That inquiry did not include the time required working in one’s own home and taking care of others.108

The Ninth Circuit welcomed the report at one of its annual conferences. Justice Sandra Day O’Connor wrote an introduction, and the Circuit created resource guides on gender fairness. Members of the Task Force participated in seminars to support work elsewhere.109 I need add that we had aspired to do intersectional analyses, but the numbers of people who were not white were too small to permit recounting variation while keeping replies aggregated and anonymous. Subsequent studies—in and beyond the Ninth Circuit—focused on the effect of race, ethnic, sexual orien- tation, and religion.110 In 2021, the State ofWashington launched another project that took on intersectionality and economic insecurity as part of the inquiries by its gender task force.111

The gender bias work is the prompt for me to return to the word “statistics” that is in the title of this essay. After the study was published, Deborah wrote an essay for a symposium in the Stanford Law Review that (as mentioned) she entitled Studying

106 Hug, Huff & Coughenour, supra note 105, at 737. 107 Id. at 738. 108 THE EFFECTS OF GENDER IN THE FEDERAL COURTS, supra note 105. 109 Hug, Huff & Coughenour, supra note 105, at 739–42. 110 See, e.g., D.C. TASK FORCE ON RACIAL AND ETHNIC BIAS AND TASK FORCE ON GENDER BIAS IN THE COURTS, FINAL REPORT OF THE TASK FORCE ON RACIAL AND ETHNIC BIAS AND TASK FORCE ON GENDER BIAS IN THE COURTS (1992); CALIFORNIA JUDICIAL COUNCIL ADVISORY COMMITTEE ON RACIAL AND ETHNIC BIAS IN THE COURTS, FAIRNESS IN THE

CALIFORNIA STATE COURTS: A SURVEY OF THE PUBLIC AND COURT PERSONNEL (1994). 111 That project is chaired by the Hon. Sheryl McCloud of the Supreme Court of Washington. WASH. ST. SUP. CT. GENDER & JUST. COMM’N, 2021: HOWGENDER AND RACE AFFECT JUSTICE NOW (2021), https://www.courts. wa.gov/?fa=home.sub&org=gjc&page=GJCReportMenu&layout=2&parent=study.

234 J. Resnik

Gender Bias in the Courts: Stories and Statistics. The essay addressed the critical interaction between individuals and aggregates.112 Deborah underscored the need for data collection—that is, statistics showing how “often,” as she put it, issues such as blocks to hiring, promotion, bias in interactions affected women. And, she under- stood the need for “stories”—bearing witness to the importance of learning from people directly “how” they felt as they negotiated gender at a time when sixteen of 100 lawyers in the Ninth Circuit bar werewomen.113 One data pointmerits adding. At the time, no person on the Circuit’s bankruptcy courts, where sixty-four judges sat, was of color; more generally, very few women and men were of color in any posi- tions. Thus, as noted, we could not keep responses anonymous and address the issues of intersectionality that were patent.

6 “Only”

In sum, across a host of domains, Deborah Hensler has taught us to aggregate and to disaggregate, to think about the ideas underlying calls for a “day in court” and “due process,” and to analyze the tradeoffs, to find ways to learn from participants in litigation systems about their forms and functions, and to probe outcomes so as to assess what remedies and money flows to whom. I close with one more story about learning from and with Deborah. In this essay, as in every time I write and teach, what Deborah said to me long ago about analyses of information is reflected. She taught me that to use the word “only” I need to identify the relevant baseline. Given that she has also been clear about the choices involved in selecting any baseline and the problems of data gathering to generate one, I do not generally use theword “only” when discussing data.

But here that word is apt. Only Deborah Hensler could have made the kinds of contributions, celebrated in this volume, to our knowledge and to our quest for human generativity through law and other social sciences—locally and globally.

112 Hensler, Studying Gender Bias in the Courts, supra note 1. 113 Id. at 2189.

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