Asbestos claims continue to taunt and torment the American legal system. The taunting comes from the fact that at its heart, an asbestos injury claim is a relatively uncomplicated tort of the sort handled by the civil liability system for many centuries. The torment comes from the sheer volume of cases, some 500,000 to date according to Professor Hensler and her RAND collaborators,1 with no sign of abating any time soon. By all accounts, as demonstrated by Professor Hensler, not only is the system far from resolving asbestos cases, but the peak of the litigation is not yet in sight. To get a sense of the pervasiveness of the asbestos crisis, one need look no further than the data of date of first exposure by individual claimants maintained by the Manville Trust, the largest and most systematic data set on filings against one company. Over the past decade of paying claims, the Manville Trust has moved the average date of first exposure to asbestos among its resolved claims from about 1953 to about 1960.2 Since Manville continued to manufacture and distribute asbestos and asbestos products into the 1980s, we would expect several decades more of litigation to move the docket of claims to the end point of original exposure to Manville products. Compound that by the long latency of asbestos diseases and the continued circulation of asbestos products well past the end date of Manville manufacturing, and it is readily apparent that the end of asbestos litigation is decades away.
Accompanying the siege of the courts is an ongoing debate over what should be done. The debate broke into the forefront of procedural jurisprudence with the Supreme Court's rejection of the use of class-action IMAGE FORMULA4
settlement devices in Amchem Products, Inc. v. Windsor3 and Ortiz v. Fibreboard Corp.4 As the battle lines were drawn over whether class actions should serve as the organizing vehicles for closure of asbestos liability, a secondary debate came to the fore. On one side were the proceduralist critics of the use of class actions shorn of the protective representation of the absent class members. On the other side were the distributionalist critics of the haphazard and wasteful fashion in which the litigation system responded to the asbestos crisis. For the proceduralists, the critical issues were the process distortions that emerged from conflicted representation and the seemingly inescapable temptation to forego the interests of the victims of tomorrow in exchange for compensation for the claimants of today.5 On the other side were those whose interests were primarily dictated by the compensatory and distributive concerns underlying the foundations of the tort system.6 The distributionalists argued that there was no escaping the facts of asbestos litigation, as summarized in Amchem: "[T]ransaction costs exceed the victims' recovery by nearly two to one; exhaustion of assets threatens and distorts the process; and future claimants may lose altogether."7
A fuller picture of the debate on the procedural side would extend to problems of rule integrity and the power of courts under the Rules Enabling Act.8 For the proceduralists, these concerns crystallized in the very structure of class actions and their inevitable removal from any familiar model of IMAGE FORMULA6
litigation. In scholarship and case law, the concern over unmoored class actions found expression in the debates over reverse auctions, allocative decisions made by unaccountable agents, and the risk of outright collusion at the expense of the absent and the uninformed. Nor was the distributivist arsenal by any means exhausted. Distributionalists kept returning to the tort system's extraordinary transaction costs, the peculiarity of repeated punitive damages awards, and litigation's overall distributive distortions of compensation.
The big showdown occurred in Amchem and Ortiz and, to put it mildly, the proceduralists won hands down. …