In Defense of Asbestos Tort Litigation: Rethinking Legal Process Analysis in a World of Uncertainty, Second Bests, and Shared Policy-Making Responsibility

Abstract

A central question in American policy making is when should courts address complex policy issues, as opposed to defer to other forums? Legal process analysis offers a standard answer. It holds that judges should act when adjudication offers advantages over other modes of social ordering such as contracts, legislation, or agency rule making. From this vantage, the decision to use common law adjudication to address a sprawling public health issue was a terrible mistake, as asbestos litigation has come to represent the very worst of mass tort litigation. This article questions this view, arguing that legal process analysis distorts the institutional choices underlying the American policy-making process. Indeed, once one considers informational and policy constraints, as well as how the branches of government can fruitfully share policy-making functions, asbestos litigation seems a reasonable and, in some ways, exemplary, use of judicial power.

Keywords: asbestos, mass tort, separation of powers, legal process

JEL Classification: K00, K13, K40, K41