Primary Jurisdiction and the Limits of Measurement in Mass Litigation
Document Type
Article
Publication Date
2020
Abstract
This Article examines the use of primary jurisdiction through the lens of institutional economics and the ongoing revolution in pre-suit, plaintiff-side testing in mass litigation. In this setting, primary jurisdiction serves a necessary pro-agency institutional role. The ability of plaintiffs’ attorneys to easily generate sophisticated laboratory testing results has allowed them to create a quasi-regulatory quality-control regime for defendants’ products and extract value from it through enhanced settlements. This offers defendants the burdens of regulation without the benefits of uniformity or policymakers with subject-matter expertise and capacity for public input. Primary jurisdiction enables defendants in mass litigation to move these quasi-regulatory actions back to regulatory settings, where the potential for efficient quality-control standards increases with agency expertise. Shifting decision-making in testing-based actions to agencies then preserves this value from conversion into litigation-based transaction costs. As scientific resolving power and the scope of potentially measurable harm evolve, primary jurisdiction thus functions as a central balancing mechanism allowing corresponding evolution in adjudication.
Publication Information
Lingwall, Jeff. (2020). "Primary Jurisdiction and the Limits of Measurement in Mass Litigation". Pace Law Review, 40(2), 85-140. https://doi.org/10.58948/2331-3528.2018