Procedural Innovations, Sloshing Over: A Comment on Deborah Hensler, <i>A Glass Half Full, a Glass Half Empty: The Use of Alternative Dispute Resolution in Mass Personal Injury Litigation</i>

Abstract

Deborah Hensler has provided us with new understanding of contemporary procedural innovations. In her thoughtful essay, Dr. Hensler offers an overview of both the history of mass torts and the current methodologies of decisionmaking. She then provides a sustained critique that these methods have not been focused on "enhanc[ing] the parties' control over litigation outcomes or process." In making her argument, Dr. Hensler narrows the definition of alternative dispute resolution ("ADR"). She rejects the common usage of the phrase as an umbrella that expansively embraces procedures ranging from judicial settlement efforts to court-annexed arbitration and summary jury trials. In contrast, Dr. Hensler defines ADR to be only those procedures that, "compared to the traditional litigation process of adversarial negotiation and trial, enhance parties' control over litigation outcome and process." After a comprehensive review of the innovations in contemporary mass tort litigation, Dr. Hensler concludes that a good deal of the innovation should not be classified as "ADR," and that, in general, procedures in mass torts have not succeeded in "bring[ing] plaintiffs into the dialogue on mass personal injury litigation." I share many of Dr. Hensler's concerns. Thus, my commentary will not focus on areas of disagreement but on the broader lessons to be drawn from her discussion of ADR in mass torts. Below, I consider the changing roles of judges, the interaction between roles taken in large-scale cases and so-called "ordinary" litigation, and the effects of methods of paying plaintiffs' attorneys in large-scale cases on, in Hensler's words, "bring[ing] plaintiffs into the dialogue on mass personal injury litigation."