Fashioning a National Resolution of Asbestos Personal Injury Litigation

A Reply to Professor Brickman

by Deborah R. Hensler

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In this paper, reprinted from Cardozo Law Review, the author responds to Professor Brickman's analysis of the asbestos litigation problem, as well as to his proposal for a national administrative solution to the problem. While the author shares Professor Brickman's view that the process for resolving asbestos-related personal injury claims has gone awry, and that the time has come for a national resolution policy, she disagrees with the underlying thrust of his analysis of asbestos litigation. Current options for a national policy include a federal statute-based administrative compensation program, and a judicially mediated settlement of pending federal and state court claims, with provision for payments to future claimants through a national trust. Neither of these options is optimal. Each approach would disadvantage some of the current and future parties to the litigation, and would diverge substantially from our idealized vision of a civil justice system that uses carefully crafted procedures to match individual disputes. The current asbestos litigation process also diverges substantially from that idealized vision. Procedures are more aggregative than individualized, and real outcomes are more generic than case-specific. The author believes it is time to confront the realities of asbestos litigation and to assess proposals for a national resolution of the litigation against a standard that admits to those realities, rather than a standard based on our aspirations for individualized dispute resolution. This paper contributes to a rethinking of the asbestos litigation problem. It critiques Professor Brickman's perspective and offers in its stead the author's assessment of the roles of the parties to the litigation. It describes the status and history of the litigation. It comments on the difficulties of designing administrative compensation programs, and discusses specific aspects of Professor Brickman's proposal.

Originally published in: Cardozo Law Review, v. 13, no. 6, April 1992, pp. 1967-1990.

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