Debate: The Future of Mass Torts

Abstract

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