Making Our Democracy Work (24 page)

The division is not surprising. Nine different judges reading a record may well reach different conclusions about the relevant circumstances
when the record is unclear, particularly when some judges tend to read the law as emphasizing state autonomy while others read it as emphasizing the importance of the particular language-learning federal educational goal. More important, few, if any, members of the public will ever know who is right. The Court’s competing opinions each set forth lengthy detailed accounts of the record. A reader can choose between them only by reading the record—a heroic undertaking, which will illuminate little of the law.

The upshot is that the Court spent a considerable amount of time to decide a close legal question producing opinions that the public cannot evaluate and that may have little effect beyond (and perhaps not even in respect to) the individual case. The principle of specialization warns the Court against undertaking this kind of task.

The second example concerns the Court’s efforts to review district court case-management proceedings. It, too, shows why I believe the Court should give great weight to the court system’s specialization of functions.

Background: General Underlying Circumstances
. The example involves asbestos cases. Workers and their families sued an employer, claiming that the employer’s negligence led to the workers’ exposure to asbestos, perhaps many years earlier. And that workplace exposure brought about the workers’ later sickness or death. Because over several decades so many workers were exposed to asbestos, the cases against even a single employer sometimes numbered in the hundreds of thousands. Many employers and the companies that insured them were willing to settle the cases without going to trial. The employer and its insurer would make a large contribution to a special fund. An administrator would manage the fund and would pay compensation to exposed workers and their families according to a schedule that correlated the amount of payment to the degree of harm. They would pay those workers who had brought suit and others who might bring suit in the future.
¹⁰

However, a condition of the defendant companies’ willingness to
settle was the court’s assurance that the amount they would put into a fund was the maximum amount they would have to pay. In other words, employers wanted to be certain that once they contributed, say, $1 billion into a fund, workers would later address their claims to the fund administrator and not bring further lawsuits. Many of the workers who had already brought suit, as well as lawyers who specialize in asbestos litigation, thought this condition was reasonable. They wanted the court to accept the condition so that they could settle the cases and get on with the business of obtaining compensation from the fund.
¹¹

Class Actions
. A procedural technique—called the class action—seemed to provide a method for accomplishing the settlement. In a class action a small number of lawyers representing a few typical plaintiffs can speak for an entire class of plaintiffs. Moreover, these typical plaintiffs have the power to enter into a settlement on behalf of the entire class, thereby binding all class members—even those who have not yet brought cases. Thus, lawyers for a class of those workers employed at company A between 1950 and 1960 could enter into a settlement that would bind all the members of that class to accept the administrative fund as a remedy. All class members would have to turn to the fund to compensate them for any harm caused them by an asbestos-related disease, whether that harm had or had not yet become apparent.

To protect all members of the class from unfair treatment, however, the law requires the trial judge to find that
all
the workers (including those not present) are adequately represented and that the settlement is
fair
in respect to all of them. Trial judges apply an intricate set of legal rules to determine whether a class action meets these criteria. As relevant here, a trial judge may only allow a class action in certain specific situations. For example, a trial judge may certify a class when (1)
common questions
of law and fact predominate over separate questions, (2) the use of a class action provides a
superior
method for resolving the dispute compared with other methods, and (3) all potential members of the class receive notice and a chance to
opt out
of the class and pursue a separate legal action should they wish to do so. The overarching goal of these legal rules is to ensure that the identified plaintiffs and
their lawyers fairly and adequately protect the interests of the entire class.
¹²

These legal rules leave much to the district court. They use words such as “fair,” “adequate,” “typical,” and “predominate,” the application of which depends on the detailed factual circumstances of the individual cases. Application of these detailed rules often lies at the heart of a district court’s management of a particular case. And district court judges, familiar with the cases before them, are in a substantially better position than appellate judges or Supreme Court justices to interpret the rules and apply them to particular circumstances.

The Case
. In
Amchem
the trial judge, applying the class action rules, certified a class made up of all workers who had worked at certain times for certain specified employers, thereby bringing into the case workers who had not yet filed suit against the defendants. The judge then approved a settlement that required the employers and their insurers to pay many millions of dollars into a fund that would remain in existence for many years. The fund set minimum criteria for compensation. The settlement provided that the administrator would pay injured workers who met those criteria several thousand to several hundred thousand dollars each, depending on how much harm the worker had suffered.
¹³

The trial judge found that a class action was appropriate because
common
questions of law or fact
predominated
over
separate
questions. He decided that the class action method was
superior
because otherwise too many workers would have to wait too long to receive too little compensation. And he concluded that given the alternatives, the settlement was a good one—even for those exposed workers who had not yet shown any sign of disease.
¹⁴

The Supreme Court eventually heard the case and disagreed. The Court conceded that the entire set of cases presented some “common questions of law or fact.” Each case involved exposure to asbestos. Each plaintiff would benefit from a quicker settlement involving fewer costs of administration. But the individual cases also differed in many important respects—for example, in the kind of exposure, length of time exposed, and kind of disease that the exposure produced. The Supreme Court thought the district court should have created subclasses of plaintiffs. Each subclass would represent a subgroup with
members who had more in common. Different lawyers representing different subclasses would help the judge better ensure fair representation of the different groups, particularly those made up of individuals whose disease had not yet appeared. Given the possibility of subclasses, the Court held, the common interests among the plaintiffs in the single big class did not
predominate
, and the single big class therefore did not “fairly and adequately protect the interests of the class.”
¹⁵

All the members of the Court recognized that the district court was more familiar with the case than were they. And they all were willing to give weight to the district court’s analysis and conclusions. Nonetheless, the majority thought that the district court had gone beyond a fair application of the class action rules, whereas in my (dissenting) view the law gave the district court adequate authority to decide as it did. The district court had considered the matter at length; it had weighed (1) the
common fact
of asbestos exposure and the plaintiffs’
common interest
in receiving compensation quickly without paying large legal fees (2)
against the differences;
and it had made more than three hundred factual findings that explained why the former predominated. The district court had concluded that the settlement was fair to all, in particular because the fund would contain enough money to pay those who were not yet ill and not yet represented.
¹⁶

The difference between the majority and the dissent is one of degree, not of legal principle. Yet practical considerations support more, rather than less, deference, and they thereby underline the need to take full account of specialization. The district court found that, had the
Amchem
settlement taken effect, it would have paid “an estimated $1.3 billion and compensate[d] perhaps 100,000 class members in the first 10 years.” The alternatives to settlement included long delays, high administrative costs, potential bankruptcies, and smaller eventual payment to victims, or perhaps no payment. Indeed, empirical studies show that the difficulty of handling the hundreds of thousands of asbestos cases that crowd court dockets means that, without settlement, administrative costs exceed amounts paid victims by a ratio of nearly two to one. Delays were often so long that in one 3,000-member asbestos class action, 448 class members died during the course of litigation.
¹⁷

Moreover, a basic mission of the court system as a whole is to bring
about the fair and speedy resolution of disputes. The circumstances of asbestos litigation offer a vivid illustration of the Court’s need to grant trial courts considerable leeway in their effort to bring about a fair resolution of the underlying disputes. That leeway finds its justification in the principle of specialization. Adherence to that principle helps courts work more effectively, which in turn helps maintain public acceptance.

W
HEN THE
S
UPREME
Court considers issues that it has previously decided, how much weight should it give to precedent? When should the Court overrule that precedent? The relevant legal doctrine, stare decisis, emphasizes the need to “maintain what has been decided.” Judges do not find it difficult to follow that doctrine when they believe an earlier decision is right. But suppose a judge believes an earlier decision is wrong. And suppose the judge belongs to a Supreme Court with the power to overrule an earlier decision. What then? Under such circumstances, the judge must make a pragmatic decision, weighing the harms and benefits of stability against change. Furthermore, the judge must emphasize stability. Stability makes the judicial system and the law itself workable. Without stability the Court’s decisions seem ad hoc and unpredictable—not part of a system at all. This is contrary to the Constitution’s objectives and tends to undermine public acceptance of the Court’s decisions.

S
OMETIMES A COURT
must overrule an earlier decision. The passage of time may make clear that the legal rule set forth in the case was wrongly decided to begin with. It may also show that the earlier case is
harmful or that it has become outdated as, in light of changing circumstances, the law in related areas has passed it by. Consider
Brown v. Board of Education
. An earlier case,
Plessy v. Ferguson
, decided by a Court fifty-eight years before, examined whether a state could require a railroad’s black customers to sit in a separate railroad car, segregated from its white customers. The Court answered that question yes, and in doing so, it established the legal doctrine of “separate but equal.” The case held that the Fourteenth Amendment’s equal protection clause permitted a state to segregate the races by law as long as it provided members of each race with equal facilities.
¹

In
Brown
the Court overruled
Plessy
and substituted for “separate but equal” the doctrine that segregated facilities are inherently unequal. The Court had to weigh the benefits of stability against those of change. On the one hand, the South had relied on the
Plessy
decision. Indeed, southern states had built not only schools but an entire society on racially segregated foundations. Their citizens had woven racial segregation into the fabric of their daily lives.
²

On the other hand, the Court, the legal community, and much of American society had begun to see the
Plessy
decision as legally wrong and the segregated society it helped build as morally wrong. It is difficult if not impossible to reconcile racial segregation with the language and purpose of a Fourteenth Amendment that forbids “any State” to “deprive any person of … the equal protection of the laws.”
Plessy’s
rule was no longer in step with constitutional case law that had required the South to integrate its schools of law and of education. Nor was it in step with a society that, in its armed forces and elsewhere, had begun to embrace integration.
³

Most important, it was clear by 1954 that
Plessy’s
rule had worked incalculable harm. That rule could not achieve its own stated goal. Instead, schools, parks, and public (and private) facilities were separate but hopelessly unequal. If
Plessy
had hoped that “separate but equal” would create a way station on the path to equality, that way station had become a terminal destination. It was impossible to see how a racially segregated nation could become a nation that equally respected all its citizens.