Mass Torts in a World of Settlement

With the exposition of the leveraging proposal in mind, I turn now to its implementation. Making peace for mass torts means supplanting not only tort litigation but also the financial arrangements associated with it on the plaintiffs' side. Specifically, the leveraging proposal turns on the overriding of fee agreements reached by contract between plaintiffs' lawyers and their clients. The effect of the override, moreover, is not simply to alter the fee terms to which the lawyer and the client previously agreed. The override envisioned in the leveraging proposal effectively would bring into being a relationship between the present claimants who are represented by the lawyer and future claimants who are not currently—and, indeed, may never become—clients of that lawyer.

The restructuring of fee agreements along the lines of the leveraging proposal is unlikely to occur simply as a matter of private negotiation, for both plaintiffs' lawyers and settling defendants stand to benefit from collusion within the backdrop of conventional fee designs. The implementation of the leveraging proposal accordingly turns on selection of an institution to impose the needed change as part of the peacemaking process. I initially explain how the job of implementation sits uneasily with the primary institutions used for peacemaking in recent years: class settlements and reorganizations in bankruptcy. There is, to be sure, some room for experimentation by these institutions; and, more broadly, there remains the possibility that they might be the subject of additional legislation along the lines of the leveraging proposal. In this chapter, I set forth a vision of the future that would play out more fully, in institutional terms, the bedrock observation that peacemaking for mass torts means turning from tort to administration.

-250-