ENFORCING A GRID
The transition to the mature stage of mass tort litigation makes for a change in strategic outlook for plaintiffs' lawyers and for defendants. Both will tend to regard ongoing lawsuits in the tort system not as a way to explore the merits of the litigation but, instead, as a prelude to its resolution on a comprehensive basis. This chapter and the next analyze the tentative, ad hoc emergence of vehicles for the comprehensive resolution of mass torts. The basic thrust of the shift is from litigation of individual claims in the tort system to creation of private administrative systems for the compensation of claimants in the future.
Three points bear mention at the outset. First, private administrative systems for compensation are not created out of whole cloth. They expose and regularize the process of aggregate settlement in mass tort litigation. Administration of claims may proceed either on a piecemeal basis (through aggregate settlements of claims filed in the tort system over time) or on a comprehensive basis (through the setting of compensation terms as much for future claims as for present ones). This prospective dimension—the power to set the legal rules that shall govern the future and to make those rules binding—is what sets apart private administration in the sense used here from aggregate settlements in ongoing litigation.
Second, this chapter draws on principles of administrative law to frame the transition from litigation to administration as a problem of institutional authority. The contrast between the settlement of pending tort claims and the binding of future claims to a private administrative system recalls the familiar distinction in administrative law between adjudication and rulemaking. To see the transition from litigation to administration as a shift from adjudication to rulemaking, in turn, is to raise questions surrounding