A Distant Mirror: The Bill of Peace in Early American Mass Torts and Its Implications for Modern Class Actions

Professor Yeazell’s Article in this symposium’ treats several historical aspects
of class-action practice that are relevant to modem settlement-class issues. His title
refers to “defendant classes,” which can include numerous actual or potential
claimants with the party potentially liable seeking a way to combine claims against
it in pursuit of economy and repose. This form of use of the class device points up
an important characteristic of at least some settlement-class practice: Those who
might be sued for damages by many claimants may, in a practical sense, take a
plaintiff-like initiative in invoking the class device vis–à–vis those who would
ordinarily be suing them. To be sure, the formal alignment when parties seeking
class certification and settlement approval bring a proposed mass-tort settlement to
a court remains that of claimants as a plaintiff class, aligned against a defendant
who would be liable for monetary relief. Much of the initiative for the settlement
effort and use of the class device, though, may have come from the “defendant,”
who thus takes on to some extent the role of relief-seeker, and may be at least as
much beneficiary as victim of the class action.

Yeazell suggests that such uses of collective or representative litigation
against large groups were a fairly common feature in the historical antecedents of
the modern class action. Indeed, they may even have been somewhat more so than
his Article demonstrates. Encountering the defendant-initiative settlement class, I
had thought it sounded reminiscent of some aspects of the old “bill of peace,” a
traditional equitable device that was sometimes available to deal with problems of
multiplicity of litigation. This symposium provided me an occasion for a look at
some early American cases involving the bill of peace in mass-tort or similar
situations; this Comment reports on the results of that investigation and its potential
implications for modem class actions. The “deep sleep” of collective litigation
from seventeenth-century England to mid-twentieth century America’ was not
complete, for some American counsel, courts, and commentators in the late
nineteenth and early twentieth centuries faced issues with considerable modern
resonance as they contemplated possible uses of the bill of peace.