Nagareda, Richard A. --- "Mass Resolution of Mass Torts: Emerging Issues in the United States and the Global Future" [2011] ELECD 623; in Steele, Jenny; van Boom, H. Willem (eds), "Mass Justice" (Edward Elgar Publishing, 2011)

Book Title: Mass Justice

Editor(s): Steele, Jenny; van Boom, H. Willem

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849805063

Section: Chapter 2

Section Title: Mass Resolution of Mass Torts: Emerging Issues in the United States and the Global Future

Author(s): Nagareda, Richard A.

Number of pages: 31

Extract:

2. Mass resolution of mass torts:
emerging issues in the United States
and the global future
Richard A. Nagareda*

1. MASS TORTS AS A PROBLEM OF
INSTITUTIONAL CHOICE

When lawyers, judges and scholars in the United States think of "dealing
with the masses", the field of mass torts springs quickly to mind. In the
U.S. literature, the term "mass torts" refers to allegations of tortious mis-
conduct said to affect large numbers of broadly dispersed persons. The
alleged injuries tend to remain latent for years but, when they ultimately
manifest themselves, those injuries typically present a limited set of pre-
dictable factual variations. The mass scope of mass torts and the predict-
ability of their future effects as an actuarial matter give rise to powerful
demands for a commensurately mass scope of resolution.
For all the controversy that continues to surround mass tort litigation
in the United States, a working consensus has emerged about the basic
terms for its resolution. The notion is to build upon the actuarial predict-
ability about the future effects of mass torts by designing a compensation
grid for claimants, both present and future. The grid may be part of a
public administrative program on the model of workers' compensation or,
more often, a privatized counterpart, overseen by counsel for the settling
parties. The hard question does not concern the notion of a compensation
grid but, rather, its enforcement: what kinds of institutional arrangements
can substitute such a grid for continued tort litigation in a ...