As the twenty-first century unfolds, the major theme for mass torts is one of convergence. Litigation brought by private lawyers on behalf of private claimants has come to operate, in practice, in the manner of public administration. The process involves the design of rules to govern large numbers of claims expected to stretch years into the future. Making peace means wielding coercive power so that the rules selected shall have the binding force of law. Peace, in other words, calls for private litigation to alter the rights of claimants on a prospective basis, much like workers' compensation legislation replaced tort litigation over workplace injuries at the dawn of the twentieth century. The story of mass torts today is the story of this rival regime of law reform.
In this study, I have argued for a “bottom-up” approach to mass torts. The most constructive step the law could take today would be to expose and to acknowledge forthrightly what mass tort litigation actually does. It is less a form of litigation and more an occasion for a series of miniaturized, privatized workers' compensation programs. The hard questions surrounding mass torts are questions of institutional design. They ask how the law might empower the making of peace and, at the same time, discipline the peacemakers themselves.
The meandering path of the law since the Supreme Court's 1997 decision in Amchem reflects a deep disjunction between the operation of mass tort litigation as a rival regime of law reform and the framework currently used to think about its workings. The vocabulary of mass torts today is the inherited vocabulary of litigation. It speaks in terms of lawyers and clients, not rule makers and rule subjects. It ties the financial rewards for the rule makers to the outcomes generated for persons the law regards as