In the wake of the U.S. Supreme Court's decisions in Amchem and Ortiz many legal analysts predicted that mass tort litigation would change dramatically. Amchem's strictures against the inclusion of future claimants in mass tort class actions created virtually insurmountable barriers to global resolution of mass claims, the critics argued. Ortiz' narrowing of the conditions justifying limited fund class actions would further limit the opportunity for corporations to cap their liability exposure from mass litigation in one fell swoop. Lawyers and legal academics who labor outside the world of mass tort litigation might well have believed that the threats to individualized due process posed by aggregation of mass claims that were at the core of the critique of the Amchem settlement had been much reduced, if not entirely eliminated.

In actuality, mass tort litigation has been little affected by the Court's decisions. The primary impact of Amchem and Ortiz has been to drive mass torts out of the spotlight that shone upon the litigation during the brief period of the 1990s when lawyers and jurists believed that class certification and class settlement might be the optimal approach to resolving mass tort litigation. In the aftermath of the Court's decisions, asbestos litigation - the subject of Amchem and Ortiz - flowed rapidly into the bankruptcy courts, where the ethicists who inveighed against the Amchem and Ortiz settlements have had little role to play. Federal multi-district litigation resumed center stage in the mass tort world, joined increasingly by consolidated actions in state courts and by informal federal-state coordination, untethered from the federal rules of civil procedure. And with a brief pause for defendants, lawyers and judges to assess their options, mass tort litigation has continued, seemingly unabated. As I write this abstract, the event most likely to change the face of mass tort litigation, passage of S. 274, dubbed "The Class Action Fairness Act," remains in question.