Consent versus Closure

58 Pages Posted: 1 Mar 2010 Last revised: 10 Jan 2011

See all articles by Howard M. Erichson

Howard M. Erichson

Fordham University School of Law

Benjamin C. Zipursky

Fordham University School of Law

Date Written: February 26, 2010


Claimants, defendants, courts, and counsel are understandably frustrated by the difficulty of resolving mass tort cases. Defendants demand closure, but class certification has proved elusive and non-class settlements require individual consent. Lawyers and scholars have been drawn to strategies that solve the problem by empowering plaintiffs’ counsel to negotiate package deals that effectively sidestep individual consent. In the massive Vioxx settlement, the parties achieved closure by including terms that made it unrealistic for any claimant to decline. The American Law Institute’s Principles of the Law of Aggregate Litigation offers another path to closure: it proposes to permit clients to consent in advance to be bound by a settlement with a supermajority vote. This article argues that, despite their appeal, both of these strategies must be rejected. Lawyer empowerment strategies render settlements illegitimate when they rely on inauthentic consent or place lawyers in the untenable position of allocating funds among bound clients. Consent, not closure, is the touchstone of legitimacy in mass tort settlements.

Keywords: mass tort, aggregate settlement, Vioxx, civil recourse, informed consent, conflict of interest, settlement, class action, aggregate litigation

Suggested Citation

Erichson, Howard M. and Zipursky, Benjamin C., Consent versus Closure (February 26, 2010). Cornell Law Review, Vol. 96, p. 265, 2011; Fordham Law Legal Studies Research Paper No. 1560035. Available at SSRN:

Howard M. Erichson (Contact Author)

Fordham University School of Law ( email )

150 West 62nd Street
New York, NY 10023
United States
646-312-8233 (Phone)

Benjamin C. Zipursky

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

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