What Do We Talk About When We Talk About Mass Torts?

Abstract:     
This is a review of Richard Nagareda's Mass Torts in a World of Settlement (Univ. Chicago Press, 2007). Nagareda's book argues that mass litigation has fundamentally altered the way that the liability system handles claims for compensation, restitution and punishment, and that out rules of civil procedure and legal ethics must change accordingly.

In this review, I praise Nagareda's synthetic and sweeping account of mass tort litigation over the past 25 years, in which he weaves together an account of the settlements arising from asbestos, tobacco, breast implant, Fen-phen and other mass torts. I positively evaluate the reform proposed at the end of the book, which I call the "Leveraging Proposal." It would require lawyers to place into escrow the fees they receive from clients whose cases they settle early in a mass tort, and the court would be permitted to garnish a portion of those fees if similarly situated plaintiffs receive less in future settlements.

My main critique of the book is that the Leveraging Proposal addresses only part of the challenge of mass torts to the contemporary legal system. It deals with the problem identified by the Supreme Court in Amchem and Ortiz. I argue that there are other, equally serious problems raised by mass torts that the Leveraging Proposal does not address, and this limits the value of the book.

Number of Pages in PDF File: 17

Accepted Paper Series