The judicial system does not adequately accommodate mass tort claims. Even the Rule 23 class action, which is otherwise a powerful aggregation tool, often fails to facilitate trying these claims. This Note argues that a combination of associational standing and statistical sampling produces a new and more effective means to aggregate mass tort claims for adjudication. Claimants can organize an unincorporated association; the association can file a suit seeking redress for its members’ injuries; and evidence can be presented in aggregated form. The proposal is a significant departure from the traditional method of representative litigation—the class action. Yet its predicates are, separately, well established. Moreover, this Note argues that aggregation through association may be preferable to aggregation through class action for several reasons: for example, it may reduce the cost of litigation and perhaps more significantly, it overcomes the choice of law problems that often prevent certification of a mass tort class action under Rule 23.
The relationship between associational standing and sampling is significant and has thus far gone unrecognized: Sampling allows aggregated evidence to take the place of individualized evidence and thereby overcomes the most significant limitation on the use of associational standing in damages actions. The proposal does not require satisfaction of the various prerequisites to class certification contained in Rule 23. The Note examines the history of representative group litigation and concludes, however, that those prerequisites are unnecessary where representation is based on consent (as it is in this Note’s proposal) as opposed to a common interest (what underlies Rule 23).