Mass Torts: An Institutional Evolutionist Perspective

Abstract

With the benefit of twenty-five years' experience of mass tort litigation, it is time to assess what we have learned. Torts scholars have already arrived at a consensus as telling as it is rare: Although courts have demonstrated considerable resourcefulness in struggling with mass torts issues, the overall performance of the litigation system in this area has been remarkably poor. Some proceduralists have voiced similar criticisms; generally speaking, however, procedure scholars seem to be more confident than torts scholars that reform can be accomplished within the basic tort paradigm. In law as in life, familiarity seems to breed contempt.