With public legislation unlikely as a practical matter and with private contracts limited in their capacity to deliver peace, mass tort lawyers would continue to experiment with class settlements. As chapter 5 has observed, the Supreme Court's decisions in Amchem and Ortiz cast the important questions about peacemaking as questions of governance and representation—of who should design the grids to govern future claims and under what institutional constraints. Developments in the class action area since the Court's decisions highlight the tension between two competing answers—the subjects of this chapter and the next.
One strand of developments springs from the need to avoid the porousness of the Owens Corning National Settlement Program (NSP). The idea is to make any solution reached by way of a class action the exclusive, mandatory avenue for future claimants. The case for mandatory class treatment as “the only option” for mass torts as a whole comes in a series of important articles by David Rosenberg that build on his endorsement of risk-based claims.1 Rosenberg's writings represent the most detailed effort to build a case for mandatory class actions in the mass tort area. As such, they provide a useful point of departure for discussion of mass tort class actions after Amchem.
Attention to mandatory classes, however, has not been confined to scholarly writings. Developments in actual litigation have pushed in the same direction—albeit while stopping short of an across-the-board endorsement of the kind advanced by Rosenberg. One of the boldest experiments in recent years consists of an effort to obtain mandatory class treatment, if not for all claims involved in a given area of mass tort litigation then, at least, for punitive damage claims.