Mass Torts in a World of Settlement

Why did mass torts emerge as a pressing concern in the late twentieth century? Relationships of cause and effect are complex. My objective here is not to present clean lines of causation where none exist. I suggest, instead, that a confluence of economic, intellectual, procedural, and political developments during the twentieth century have contributed to the mass tort phenomenon. These developments have produced an environment in which litigation over mass torts and demands for their comprehensive resolution are virtually inevitable—certainly, are matters that will challenge the legal system for the foreseeable future.

I discuss each development in its own right and do not mean to imply the existence of any single force behind all of them. The connection of each to the emerging shift from tort to administration nonetheless bears notice at the outset. Each development—industrialization, intellectual trends in tort theory, reform in civil procedure, and political dimensions of mass torts—has raised questions about the proper relationship between private and public institutions for the resolution of disputes.

The economic developments behind the mass tort problem are easily stated, their implications less so. Mass torts are the by-products of industrialization, with its systematized processes for production and sale on an unprecedented scale. As in any complex process, there is a potential for error, however inadvertent. The scale of production and sale simply expands the adverse effects of any error. Mass torts stand as an awkward reminder of humanity's imperfect mastery of the world. One strand of tort scholarship

-1-