Mass Torts in a World of Settlement

By Richard A. Nagareda | Go to book overview

CHAPTER II
THE DEVELOPMENT
OF A MASS TORT

Mass torts do not start as occasions for the reform of people's legal rights in a manner to rival public legislation. Efforts to fashion a comprehensive peace, instead, grow out of the way in which mass tort litigation often develops. At the outset, it bears emphasis that a particular developmental pattern is not necessary for the emergence of mass tort litigation. There is no single mold here, only the observation that mass tort litigation frequently comes by way of stages that one may identify. Existing scholarship recognizes these stages, but their full implications remain relatively unexplored.1 This chapter sets forth the major stages, connecting them to the economic underpinnings of mass tort lawsuits and the challenges of settlement design. Those subjects, in turn, implicate the strategies and objectives of mass tort lawyers on both plaintiffs' and defendants' sides.

Three themes permeate the discussion in this chapter. First, the emergence of mass tort litigation relates closely to the defining features of mass torts themselves and the elements of a tort cause of action. Each element has financial implications for the development of a viable subject area for mass tort litigation.

Second, the stages often exhibited by mass tort litigation influence settlement design. The time when one pursues a comprehensive solution affects dramatically the content of the peace terms that the contending sides will find palatable. In general, the later one proceeds in the development of mass tort litigation, the less attractive defendants will find solutions that posit some manner of continued litigation in the tort system and the more they will seek measures to replace tort litigation with some privatized administrative system. As I shall explain, this phenomenon is not merely the

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