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Mass Torts in a World of Settlement

The traditional definition of torts involves bizarre, idiosyncratic events where a single plaintiff with a physical impairment sues the specific defendant he believes to have wrongfully caused that malady. Yet public attention has focused increasingly on mass personal-injury lawsuits over asbestos, cigarettes, guns, the diet drug fen-phen, breast implants, and, most recently, Vioxx. Richard A. Nagareda’s Mass Torts in a World of Settlement is the first attempt to analyze the lawyer’s role in this world of high-stakes, multibillion-dollar litigation.

These mass settlements, Nagareda argues, have transformed the legal system so acutely that rival teams of lawyers operate as sophisticated governing powers rather than litigators. His controversial solution is the replacement of the existing tort system with a private administrative framework to address both current and future claims. This book is a must-read for concerned citizens, policymakers, lawyers, investors, and executives grappling with the changing face of mass torts.


379 pages | 1 line drawing, 1 table | 6 x 9 | © 2007

Economics and Business: Business--Business Economics and Management Studies

History: American History

Law and Legal Studies: Law and Society, Legal History, Legal Thought

Political Science: Public Policy

Reviews

“A brilliant account of mass torts. . . . Nagareda has a keen eye for strategy and a remarkable ability to discern patterns among litigants’ decisions that reveal the reasons for their actions, regardless of whether these reasons are ever stated in their pleadings.”

Anthony Sebok | Michigan Law Review

“Masterfully dissecting most of the major mass tort settlements of the past decade, Nagareda convincingly explains how and when mass torts settle, as well as why these settlements often fail.”

David Marcus | University of Chicago Law Review

Mass Torts in a World of Settlement not only provides an interesting overview regarding the state of modern mass tort litigation, but also an ambitious proposal for resolving such claims.”

Douglas G. Smith | University of Illinois Law Review

“Richard Nagareda masterfully brings the world of tort law into the modern era. This book analyzes meticulously how far we have come from the formative account of a tort suit as a one-off, individual trial in which an injured party would typically seek compensation from a stranger encountered by chance. In its place, we have the statistical certainty of harm to unknown parties by products set adrift in the marketplace of mass society in which trials are few and claims administration becomes the norm. Nagareda introduces us to this complicated world of complex litigation and its inhabitants, from the entrepreneurial lawyers to the insurers, actuaries and epidemiologists, and to the lag between the real world of tort law and formal legal doctrine. An indispensable read for anyone interested in the real world of how injured individuals are compensated in mass American society.”

Samuel Issacharoff, Reiss Professor of Constitutional Law, New York University School of Law

“If there is any justice, Nagareda’s new book will transform the long-running debate about how to think about, and then to reform, mass torts. Building on his own earlier work and that of many other scholars, he maps the field and then provides a deeply informed, clear-eyed analysis of its underlying litigation and settlement dynamics and the very serious problem that they create: a divergence between the goal of justice for present and future victims and their lawyers’ incentive. Most important, he offers an ingenious and attractive public law solution to what he properly sees as a public law problem—and shows us how to achieve it.  Mass Torts in a World of Settlement is required reading for scholars in the field.”

Peter H. Schuck, Simeon E. Baldwin Professor of Law, Yale Law School

“The book is a major scholarly contribution that is crisply written, highly informative, and innovative in both analysis and prescription. It provides unparalleled coverage of many of the important mass torts, including the litigation strategies and associated issues of civil procedure, bankruptcy law, and insurance. Both legal academics and practicing attorneys—indeed, anyone interested in litigation—will find this book to be compelling.”

Mark Geistfeld, Crystal Eastman Professor of Law, New York University

“In this ambitious and insightful book, Nagareda addresses a rich array of topics in mass tort litigation. He offers a powerful argument that mass torts present a problem of governance that should be understood less as ordinary tort litigation and more as an exercise in administrative rulemaking. Nagareda’s command of the material and his ability to pull together diverse stories into a coherent account of the problem make this a must-read for those who wish to understand the complex world of mass tort litigation.”

Howard M. Erichson, professor of Law, Seton Hall Law School

"[The book] is densely written for an academic or professional audience. It is complex but vey worthwhile reading."

John Levin | CBA Record

Table of Contents

Introduction     
Part I The Mass Tort Problem           
Chapter 1 Origins
Chapter 2 The Development of a Mass Tort         
Chapter 3 Regulating Development Indirectly        
Part II From Litigation to Administration         
Chapter 4 Making and Enforcing a Grid   
Chapter 5 The Rise and Fall of the Mass Tort Class Settlement     
Part III The Search for Peace  
Chapter 6 Public Legislation and Private Contracts           
Chapter 7 Mandatory Class Actions Revisited      
Chapter 8 Maximizing or Minimizing Opt-Outs     
Chapter 9 Bankruptcy Transformed         
Chapter 10 Government as Plaintiff
Part IV Peacemaking as Governance    
Chapter 11 Leveraging Conflicts of Interest
Chapter 12 Administering the Leveraging Proposal 
Conclusion      
Acknowledgments       
Notes  
Index   
 

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