An Administrative Approach to the Resolution of Mass Torts?

17 Pages Posted: 6 Feb 2008 Last revised: 17 Jun 2009

Douglas G. Smith

Kirkland & Ellis LLP; Loyola University Chicago School of Law; American Enterprise Institute (AEI)

Abstract

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.

Keywords: mass torts, civil procedure, Richard Nagareda, litigation, settlement, administrative resolution

JEL Classification: K13, K41

Suggested Citation

Smith, Douglas G., An Administrative Approach to the Resolution of Mass Torts?. University of Illinois Law Review, Vol. 2009, No. 2, p. 895; George Mason Law & Economics Research Paper No. 08-06. Available at SSRN: https://ssrn.com/abstract=1090026 or http://dx.doi.org/10.2139/ssrn.1090026

Douglas Geoffrey Smith (Contact Author)

Kirkland & Ellis LLP ( email )

300 North LaSalle
Chicago, IL 60654
312 862 3374 (Phone)

Loyola University Chicago School of Law ( email )

25 E. Pearson
Chicago, IL 60611
United States

American Enterprise Institute (AEI) ( email )

1150 17th Street, N.W.
Washington, DC 20036
United States

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