Some Realism About Mass Torts

Abstract

This essay reviews Richard Nagareda's Mass Torts in a World of Settlement. Nagareda argues that the settlement of a mass tort is an act of governance because it involves the exchange of rights to sue of large classes of plaintiffs for a compensation regime. Some source of legitimacy must give plaintiffs' attorneys, who lack contractual relationships with these plaintiffs, the power to alter these pre-existing rights as fixed by substantive law. Litigation-centered ideals of due process, Nagareda concludes, fall short because they emphasize individual autonomy and thus preclude the sort of mandatory representation settlement requires. He turns to rulemaking to solve the problem of legitimate governance. Agencies should adopt mass tort settlements as public rules.

Masterfully dissecting most of the major mass tort settlements of the past decade, Nagareda convincingly explains how and when mass torts settle, as well as why these settlements often fail. Where Nagareda's otherwise realist account takes a formalist turn is with his claim that plaintiffs have pre-existing rights to sue fixed by substantive law. I argue that a realist account of rights to sue includes procedural avenues for their attempted vindication, as well as their substantive contours, as essential components. This account supports the entity theory of the class action that treats the class as something different than merely an assemblage of individual litigants. The entity theory in turn justifies less scrupulous attention to the due process rights of individual class members. Since these due process rights have often precluded settlement, the entity theory offers a theoretical avenue around some of the difficulties that Nagareda believes justifies a turn to rulemaking.

Keywords: torts, mass torts, compensation regime