Mass Torts in a World of Settlement

By Richard A. Nagareda | Go to book overview

CHAPTER VI
PUBLIC
LEGISLATION
AND PRIVATE
CONTRACTS

The fall of the class settlements in Amchem and Ortiz did not mark the end of efforts to make peace in mass tort litigation. To the contrary, in the period since the Court's decisions, a rough consensus has emerged about the desirability of moving toward some manner of grid-based solution once mass tort litigation has matured. This sentiment coexists, however, with a striking lack of consensus on the appropriate institutional vehicle to lend binding force to the grid.

The five chapters that comprise this part trace the search for a suitable vehicle to make peace in the aftermath of Amchem. The present chapter begins with a brief taxonomy of the various peacemaking vehicles that have emerged. It then explains how the long-standing debate among tort scholars over risk-based claims helps to organize our thinking about developments in the post-Amchem world. The remainder of the chapter starts in earnest on the story of mass torts since Amchem, discussing the two most straightforward of the many vehicles for peace.


A Taxonomy of Peacemaking Post-Amchem

The peace vehicles to emerge in recent years have come in several forms: renewed efforts at public legislation, private contractual agreements, continued experimentation with class actions, and use of the corporate reorganization process in bankruptcy. This is not to say that all of these vehicles were completely unknown at earlier times, only that rejection of the Amchem and Ortiz class settlements has lent urgency to their pursuit.

The principal developments within Congress have been twofold: enactment of the federal statute establishing the 9/11 Fund and ongoing efforts

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