Partial 'Global Peace': Federalism and the Long Tail of Remedies in Opioid Litigation

Abstract

The Opioid Litigation yields important insights for federalism and for remedies in complex multi-party and multi-prong cases. This sprawling set of cases underscores that essentialized ideas of a set of fixed “state” and “federal” interests do not capture the diverse and often conflicting goals of states and subunits or of the national government. Likewise, this litigation serves as a reminder of the need to reframe assumptions about the role courts ought to play when considering settlements aiming for “global peace.” Large-scale litigation is often thought to be a two-step process entailing a first decision to aggregate and a second step of either a trial or a settlement. But these forms of lawsuits do not end there. Law needs to clarify that a third step is needed because, even when interests are sufficiently homogenous to warrant aggregation at a litigation’s inception and conclusion, differences can emerge thereafter when implementing remedies. Judges should use their authority to ensure that aggregated plaintiffs continue to have access to courts during all three phases of large-scale litigation. Recognition is needed that resolutions are partial because, after liability issues have been resolved, additional information often emerges about the individuals and entities to whom remedies are supposed to flow, and readjustments may be needed in the structure and allocation of relief.