The Cumulative Sources of the Asbestos Litigation Phenomenon

Abstract

This paper attempts to address, in a brief and preliminary fashion, the sources of the current asbestos litigation phenomenon. I call our current asbestos litigation situation a "phenomenon" rather than a "crisis" because the term "crisis" implies a newly emergent or immediate form of distress. In my view, the asbestos litigation phenomenon has resulted, in contrast, from a cumulative set of intentionally adopted changes in law and procedure that together have created litigation that is and will continue to be unending and infinite in magnitude. At the time these multiple changes were introduced, each of them was thought helpful—perhaps even necessary—for dealing with the consequences of asbestos-related injuries. Together, however, they have resulted in a litigation phenomenon unlike any other ever experienced in America or other countries controlled by the rule of law. In order to appreciate the cumulative effect of these changes, it is helpful to understand how our composite system of accident law, government regulation, and market regulation operates to control sources of injury in our society. As will be seen, this system incorporates a form of internal self-correction of injury generation that constrains the extent to which injuries are suffered and, as a consequence, the extent to which litigation is required to provide redress for those injuries. As we also shall see, virtually all of these restraints have been relaxed in the context of asbestos-related claims. The most significant relaxation occurred within accident law—the law of torts—and is manifested in the extraordinary litigation that we observe today.