Rough Justice

Abstract

This Essay offers a new justification for rough justice. Rough justice, as I use the term here, is the attempt to resolve large numbers of cases by using statistical methods to give plaintiffs a justifiable amount of recovery. It replaces the trial, which most consider the ideal process for assigning value to cases. Ordinarily rough justice is justified on utilitarian grounds. But rough justice is not only efficient, it is also fair. In fact, even though individual litigation is often held out as the sine qua non of process, rough justice does a better job at obtaining fair results for plaintiffs than individualized justice under our current system. While rough justice also has its limitations, especially to the extent it curbs litigant autonomy, in the end it is the most fair alternative currently available for resolving mass tort litigation.

Keywords: Jury, Verdict, Tort, Settlement, Mass Tort, Vioxx, September 11, Civil Procedure, Complex Litigation, Procedural Justice

JEL Classification: K13, K41