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Whether the evolution of such a system is a good or bad idea remains a normative
judgment.12 For purposes of this report, it is sufficient to say that some commentators
present credible arguments that there is a system evolving that satisfactorily addresses the
major problems with mass torts. That is definitely a minority view.
On a more limited plane, Judge Weinstein has expressed the opinion that there is no
problem with the current class action rules. His premise appears to be that the class action
device can successfully control mass torts litigation. Judges can use the existing rule
by subclassing, appointing independent lawyers to represent future claimants and unrepresented
subclasses, exercise close judicial control of the proceedings, and strictly monitor
lawyers’ fees and client relations.13
C. Unintended effects of solutions
Policymakers who examine problems and proposed solutions in the complex arena of
mass torts should also be aware of the history of past proposals. Many past efforts at
solutions—often innovative adaptations of existing procedural rules, statutes, and substantive
common law rules—have generated new problems. For example, the use of class
action devices to settle asbestos litigation has run afoul of standards for adequate representation
and procedural fairness for potential claimants whose injuries remain latent.
Innovative pursuit of unprecedented aggregative remedies in Amchem and Cimino appears
to have the unavoidable effect of adding years in which individual cases were not
scheduled for trial.14 Efforts to address the needs and interests of future claimants outside
of the bankruptcy context have revealed new problems relating to procedural fairness,
such as notice to and adequate representation of future claimants who may not be
aware of their risk of injury.
Most importantly, success itself may breed problems by creating demand in the form
of new cases. Francis McGovern states it succinctly: “The more successful judges become
at dealing ‘fairly and efficiently’ with mass torts, the more and larger mass tort filings
become.”15 This has come to be know more simply as the “highway” or “Field of Dreams”
12. See Francis E. McGovern, Looking to the Future of Mass Torts: A Comment on Schuck and Siliciano, 80
Cornell L. Rev. 1022, 1027 (1995).
13. See Jack B. Weinstein, Notes for a Discussion of Mass Tort Cases and Class Actions. 63 Brook. L. Rev. 581,
585 (1997) [hereinafter, Weinstein, Mass Tort Class Actions].
14. This is not to say that aggregative procedures in those two cases had no effect. Most of the Cimino
cases settled before trial, and settlement of present claims apparently continued in Amchem while the case
worked its way to the Supreme Court. The parties can continue to use the settlement frameworks created in
those two cases.
15. Francis E. McGovern, An Analysis of Mass Torts for Judges. 73 Tex. L. Rev. 1821, 1822 (1995) [hereinafter
McGovern, Mass Torts for Judges].
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Appendix C: Mass Torts Problems & Proposals
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