Debate: The Future of Mass Torts

21 Pages Posted: 3 Apr 2011 Last revised: 4 Apr 2011

See all articles by Sergio J. Campos

Sergio J. Campos

University of Miami School of Law

Howard M. Erichson

Fordham University School of Law


In this series of essays, Professor Sergio Campos and Howard Erichson debate the wisdom of compelled collective treatment of mass tort claims.

Campos urges abandonment of the "day in court" model and adoption of mandatory class actions for mass torts. Campos advances a view of mass tort claims as collective property and offers a reading of the Supreme Court's due process precedents that would permit mandatory collective treatment. Collective ownership of claims would allow plaintiffs' lawyers to litigate based on aggregate stakes and thus would reduce mass harms. Given the priority of reducing mass harms, Campos argues, individual ownership of claims should not be accommodated.

Erichson responds that mandatory class actions are not necessary to level the field in mass torts. Mass representation by lawyers and the work of leadership counsel in multidistrict litigation can provide many of the benefits of collectivization without ultimately depriving claimants of the decision whether to release their claims in settlement. Emphasizing the agency risks of class actions as well as the availability of non-class settlement mechanisms, Erichson argues that absolute collectivization carries real dangers but only illusory benefits.

Keywords: mass tort, class action, Amchem, Hansberry, Mullane, aggregate settlement, aggregate litigation, BP, MDL

JEL Classification: K41, K42

Suggested Citation

Campos, Sergio J. and Erichson, Howard M., Debate: The Future of Mass Torts. University of Pennsylvania Law Review PENNumbra, Vol. 159, p. 231, 2011, Fordham Law Legal Studies Research Paper No. 1801316, Available at SSRN:

Sergio J. Campos

University of Miami School of Law ( email )

1311 Miller Drive #380
Coral Gables, FL 33146
United States
3052845899 (Phone)

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)

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