An Administrative Approach to the Resolution of Mass Torts?
Douglas G. Smith | 2009 U. Ill. L. Rev. 895
Mass Torts in a World of Settlement advances a proposal for potential mechanisms to resolve mass tort claims. Richard Nagareda contends that mass tort litigation is often “dysfunctional” and that parties in mass tort disputes have moved away from litigation and toward administrative pro-cedures to settle their claims. Nagareda ultimately concludes that the government should facilitate this move toward administrative procedures by putting into place a formal structure to provide an administrative or regulatory solution.
In this Book Review Essay, the author shows that Nagareda overlooks the positive effects litigation has on mass tort claims. He notes that litigation creates a global resolution of many mass tort claims by precluding claims, and even where litigation does not completely preclude a claim, it will often narrow the claim. Additionally, the author argues that there are significant barriers to implementing an administrative solution as proposed by Nagareda. For instance, conflicts amongst the plaintiffs’ bar will make it difficult for the bar to reach an agreement on an administrative solution. Additionally, Nagareda’s administrative system would preserve plaintiffs’ lawyers’ incentive to cheat the system and receive immediate compensation for dubious claims. Perhaps most significantly, the author illustrates that Nagareda’s proposal would significantly interfere with private contracting and with claimants’ abilities to make individual decisions about their own claims. Ultimately, the author concludes that the tools to rationalize mass tort claim resolution exist in the traditional litigation system and that the traditional litigation-based paradigm should be fortified, not abandoned.
Mass Torts in a World of Settlement, by Richard A. Nagareda. The University of Chicago Press, 2007.