Some Realism about Mass Torts

Mass Torts in a World of Settlement. Richard A. Nagareda. Chicago, 2007. Pp vii, 324.

In 1995, Peter Schuck began an important article by recalling the summer of 1969, when physicians prescribed diethylstibestrol (DES) to prevent miscarriages, soldiers sprayed Agent Orange freely in Vietnam, and crushing liability for asbestos companies remained in the future. Mass torts had not yet become a phenomenon. Reflecting on the subsequent twenty-five years of tumult, Schuck made a “preliminary” effort to define a “mass tort system.” Schuck expressed his optimism that this system, a set of dispute resolution processes, could adequately bring peace to complex mass harms. Since then, the mass tort system he outlined has endured a true trial by fire. Scores of mass injuries, the ugly underbelly of a global marketplace, have plagued American courts with thousands of complicated cases. Several of the most ambitious efforts to herd such litigation toward an efficient and just conclusion have failed, at times in spectacular fashion. A dozen years of mass tort litigation have put front and center the question of whether global peace— the final resolution of a defendant’s liability to thousands or even millions of possible plaintiffs—is possible in a legal system that begins with the premise that each individual has a right to her own day in court. An answer should begin with a thorough reevaluation of the mass tort system Schuck outlined, and Richard Nagareda has provided one in his Mass Torts in a World of Settlement.