This week, we begin a new feature at Class Action Countermeasures. Much as I occasionally look at classic class-action cases, I’m also going to look at classic scholarship once per month. That scholarship will have to have some connection to class actions or other kinds of aggregated litigation. And I’ll be mining these articles for what they can tell us about the modern class action.

First up, a Harvard Law Review Note from 1955, titled The Challenge of the Mass Trial. This Note is occasionally credited with influencing the 1966 Advisory Committee’s revisions to Rule 23, which created what we consider to be the modern class action.

The increased frequency of mass litigation due to the large scale on which American social and economic activities are organized has had a pronounced impact on the judicial system. A train crash or an antitrust prosecution, for example, may involve hundreds of claims or litigants, and courts on both trial and appellate levels may be faced with a choice between separate trials with the possibility of considerable expense and delay or a single trial with the risk of prejudice to one or more of the parties. Terming this “an acute major problem in the current administration of justice,” a committee of federal judges has recently set forth suggestions to assist the court in its conduct of mass trials without a jury. This Note will focus upon the mass single trial or consolidated action in which a jury is being used, and it will outline methods of procedure which may be available to the trial judge in dealing with mass litigation.

(Internal footnotes omitted.)

According to the Note, there are three possible elements to a mass trial: "multiple parties, multiple issues, and complex fact situations." These elements create obvious case management difficulties. Leaving aside the time (and expense) it takes to try multiple, complicated factual issues involving multiple parties, trying them in front of a jury runs a very high risk of hopelessly confusing the jurors. As the Note author observed:

Finally, the sheer volume of the single mass trial multiplies the possibility of error beyond that found in the ordinary trial, particularly in criminal cases, where there is always the danger of guilt by association.

(Emphasis added.)  The Note also contains a discussion of what may be the first modern mass trial, Gwathmey v. United States, in which the

appellate court concluded that the trial court had abused its discretion and had denied the defendants due process of law since, under the circumstances, the jury could not possibly have had an informed opinion.

Gwathmey continues to be a useful precedent for those facing mass tort cases, where mass trials are still a possibility under certain circumstances, and so where defendants still must be wary for how trying complex cases may prejudice their rights.

The Note also makes a number of suggestions about how to improve mass trials; among them:

  1. allowing jurors to take notes;
  2. allowing for consolidation of issues;
  3. using a "model trial" (bellwether trial) to work out issues for subsequent plaintiffs; and
  4. using a commission rather than a jury to find facts.

What is particularly interesting is how many of these proposed improvements are still good ideas today, 55 years later. While the Note itself was written before the modern revisions to Rule 23, it’s surprisingly applicable to modern mass torts. And that makes it one of the earliest examples of classic class-action scholarship.