Mass Torts in a World of Settlement

By Richard A. Nagareda | Go to book overview

CHAPTER XI
LEVERAGING
CONFLICTS OF
INTEREST

In the period since the Supreme Court's Amchem decision in 1997, the law of mass torts has meandered. The story of mass torts since Amchem is the story of a halting search. The elusive goal remains an arrangement to make comprehensive peace in mass tort litigation. To implement their desired peace arrangements, settling lawyers have sought to use public legislation, contracts with plaintiffs' law firms, revamped forms of class settlements, and reorganization plans in bankruptcy. On occasion, the government has become involved as a litigant and a participant in the peacemaking process. Insofar as learning has occurred in this process of ad hoc experimentation, that learning itself has been ad hoc and episodic in nature. The time has come to synthesize the lessons learned from pursuit of the various paths.

Words like “peace,” “settlement,” and “resolution” have a certain soothing tone to them. When we hear those words in connection with mass torts, however, we also should hear the word “coercion.” Any peace arrangement in the mass tort setting will entail the exercise of coercive power. For the people who stand to sue over a mass tort, peace inherently means the replacement of their individual rights of action in the tort system with a new set of rights to compensation under some manner of administrative grid. Making peace, moreover, means making that replacement stick, such that people no longer enjoy the kind of autonomy over their claims that the tort system provides. Tort claimants, however, do not comprise the only persons, or even necessarily the primary persons, whom the peacemaking process should stand to coerce. This chapter contends that another significant dimension of coercion should concern the peacemaking lawyers themselves. Peace arrangements shift the compensation of claimants from the tort system to an administrative grid. So too, I shall argue, should peace

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