Aggregation and Settlement of Mass Torts

It is the way of symposia that, after conveners assign topics for discussion, participants interpret those topics to cover subjects that interest themselves. I understand my assignment to be discussion of nonbankruptcy closure and settlement. The Judicial Conference Working Group on Mass Torts suggests possible approaches that might facilitate closure of mass tort claims by litigation or by settlement! This paper will explore two models prepared to illustrate the challenges that confront any approach to fair and efficient closure. The first model is the All-Encompassing Model, while the second is a draft of settlement-class provisions for Federal Rule of Civil Procedure 23. Before exploring the models, however, I will consider many of the doubts provoked by reflecting on the Working Group\u27s experience. These are equal-opportunity doubts. There are powerful reasons to doubt the virtues of individual litigation of individual claims that arise out of a mass tort. These reasons support exploration of mass aggregation and mass settlement. At the same time, there are powerful reasons to doubt the virtues of mass aggregation and mass settlement. These reasons support the argument for making only modest changes or none at all