Challenges of Representation and Distribution
Edited by Jenny Steele and Willem H. van Boom
Chapter 2: Mass Resolution of Mass Torts: Emerging Issues in the United States and the Global Future
Richard A. Nagareda* MASS TORTS AS A PROBLEM OF INSTITUTIONAL CHOICE 1. When lawyers, judges and scholars in the United States think of “dealing with the masses”, the field of mass torts springs quickly to mind. In the U.S. literature, the term “mass torts” refers to allegations of tortious misconduct said to affect large numbers of broadly dispersed persons. The alleged injuries tend to remain latent for years but, when they ultimately manifest themselves, those injuries typically present a limited set of predictable factual variations. The mass scope of mass torts and the predictability of their future effects as an actuarial matter give rise to powerful demands for a commensurately mass scope of resolution. For all the controversy that continues to surround mass tort litigation in the United States, a working consensus has emerged about the basic terms for its resolution. The notion is to build upon the actuarial predictability about the future effects of mass torts by designing a compensation grid for claimants, both present and future. The grid may be part of a public administrative program on the model of workers’ compensation or, more often, a privatized counterpart, overseen by counsel for the settling parties. The hard question does not concern the notion of a compensation grid but, rather, its enforcement: what kinds of institutional arrangements can substitute such a grid for continued tort litigation in a manner that will garner legitimacy in the eyes of the law and actually deliver closure in practical terms?1 The enterprise...
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