Note: 2 classroom credits; 1 credit for mandatory writing.
This course will investigate the problems of law and policy associated with mass tort litigation. In recent years the courts have been confronted with the task of adjudicating, or overseeing the settlement of, a series of mass-exposure cases pitting thousands or even millions of toxic-exposure victims against dozens of defendant firms. These cases present legal institutions with a profound dilemma, the importance of which is indicated by the fact that the Supreme Court has rendered two major decisions in recent years on the viability of mass tort class actions. On the one hand, applying the traditional model of individualized, case-by-case adjudication in such settings is not only prohibitively expensive but largely fails to achieve the substantive aims of tort law such as deterrence, compensation, and corrective justice. On the other hand, adoption of collectivizing processes that depart from this traditional model collides with received notions of due process and individual justice, as well as introducing novel problems of substantive law, procedural design, and legal ethics. Our objective in this course will be to examine this dilemma from the standpoint of theory, policy, and practice, with an eye toward both the fundamental questions of social justice raised by these cases and the concrete operation of these cases. The coverage of the course will span a number of interrelated issues of substance procedure and ethics.
Among the topics we will consider are the following: 1. We will look at the distinctive problems of substantive liability and damages in mass tort cases, including proof-of-causation rules; apportionment of liability among multiple defendants; distribution of recovery among plaintiffs; and risk-based recoveries and damage scheduling. 2. We will examine the special institutional and procedural problems of resolving mass tort cases, including the choice between class and individual actions; the use of sampling or averaging techni ques to avoid separate trials on individual issues; the use of statistical evidence; and difficulties associated with the settlement of large-scale actions. 3. We will look at the distinctive problems of legal ethics and representation raised by mass tort cases, including conflicts of interest between lawyers and clients, conflicts of interest between different groups of plaintiffs, and the financing of litigation. We will attempt to integrate knowledge from a number of fields of law and from other disciplines. Emphasis will be given to the functional analysis of actual practical problems. There is no examination; the final grade will be based on the student's paper and written comments on other students' papers.