An Administrative Approach to the Resolution of Mass Torts?
Douglas G. Smith
Kirkland & Ellis LLP; Loyola University Chicago School of Law; American Enterprise Institute (AEI)
University of Illinois Law Review, Vol. 2009, No. 2, p. 895
George Mason Law & Economics Research Paper No. 08-06
This article contains a review of Professor Richard Nagareda's recent book, Mass Torts in a World of Settlement. Nagareda's premise is that parties have moved away from litigation and toward procedures that are more administrative in nature to resolve mass tort claims and that this move should be facilitated by putting in place a more formal structure to provide an administrative or regulatory solution. However, it is not clear that Nagareda's approach will be feasible in practice. Nor is it clear that it will provide a comprehensive solution to the problems plaguing mass tort litigation. More fundamentally, there are particular aspects of traditional litigation-based resolution of mass tort claims that are important and should not be abandoned. Much of the dysfunction with respect to mass tort claims resolution may be traced to a failure to implement litigation-based procedures, as opposed to being a result of such procedures. Accordingly, a strong case can be made that the traditional litigation-based paradigm should not be abandoned, but rather fortified.
Number of Pages in PDF File: 17
Keywords: mass torts, civil procedure, Richard Nagareda, litigation, settlement, administrative resolution
JEL Classification: K13, K41
Date posted: February 6, 2008 ; Last revised: June 17, 2009