Resolving mass toxic torts: myths and realities

by Deborah R. Hensler

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Since the early 1980s, thinking about mass toxic torts has changed dramatically, and a consensus has emerged calling for substantial modifications in traditional court processes to improve the efficiency and equity of the mass claims resolution process. Debate about the type of modifications focuses on expanding the use of formal aggregative procedures such as class actions, consolidations, and multidistrict litigation. The debate over expanded use of aggregative procedures also revolves around the choice between different "versions of legal reality." When scholars and practitioners assess the appropriateness of applying various formal aggregative approaches to mass torts, they use the "traditional tort approach" as their standard for comparison. This paper argues that this version of legal reality is factitious, both with regard to process and substantive outcomes. The author discusses what empirical research shows about the divergence between the traditional image of the tort approach and the actual workings of the tort system, in both routine and mass tort cases. The discussion focuses on three issues: (1) lawyer-client relations and litigant control, (2) opportunities for adjudication, and (3) substantive outcomes.

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