Faculty Bibliography

Relying chiefly on the combination of costly, unsystematic, and unreliable FDA monitoring and state negligence actions, the current postapproval system for controlling medical device risks falls far short of assuring optimal levels of safety. The reform proposal we advance comprehensively addresses these law enforcement deficiencies. The contemplated changes are straightforward and simple to implement yet would substantially reduce cost while increasing the effectiveness of both FDA monitoring and civil liability deterrence. Monitoring would be improved by requiring first-party insurers to investigate and report to the FDA the potential existence of a causal connection between the personal injury for which they are funding treatment and the patient’s (insured’s) use of or exposure to a medical device. The FDA would be authorized to enlist DOJ Civil Division enforcement of a federal cause-based strict liability action against the medical device manufacturer. The manufacturer would bear liability in full, with no reduction for risk contributions from the injured patient or other parties and would pay damages in total to the US Government. We explain the regulatory advantages of this new regulatory rule of cause-based strict liability relative to conventional rules of negligence and strict liability.

A legal decision once prevented a church from vetoing a Harvard Square restaurant’s liquor license. Now it could prevent other private parties from wielding government power.

We propose a fundamental restructuring of the federal civil pretrial process to address its great expense and unreliability in resolving cases on their merits-problems largely attributable to discovery. The proposed reforms establish an affirmative-disclosure mandate that sharply reduces the role of discovery by transferring most of the parties' burden of fully revealing discoverable matter, favorable and unfavorable, to their pleadings. To effectuate the new function for pleadings, the reformed process replaces Rules 12(b)(6), (c), and (f) with pretrial merits review conducted exclusively pursuant to the procedures and standards for summary judgment under Rule 56. Responding parties will be required to fully disclose discoverable matter to which they have exclusive or superior practical access ("asymmetric information"), but only if the initiating party's pleading makes a summary judgment-proof showing on all elements of their claims or defenses that are unaffected by the information asymmetry. Discovery, if any, would generally be deferred to the postpleading stage and restricted to court-approved, targeted use as may be needed for purposes of facilitating resolution of cases by summary judgment, settlement, or trial preparation. Compared to the current regime, the reformed pretrial process should enable courts and parties to resolve more cases on the merits-more cheaply, quickly, and reliably-thus increasing deterrence and other social benefits from the use of civil liability to enforce the law. Courts in this country, including "Mandatory Initial Discovery" pilot projects, launched by the Federal Judicial Center last year, and abroad are testing the benefits of affirmative-disclosure reforms that resemble what we propose in this Article.

This brief addresses the relationship of the class action to the law of Article III justiciability to inform the question presented in Microsoft Corp. v. Baker, No. 15-147. The brief discusses the function of the class action and shows that the existing law of Article III justiciability takes that function into account in determining whether a party can appeal the denial of class certification.

This brief addresses the first question presented in Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146, which concerns the use of statistical techniques in class actions. The brief informs the Supreme Court of the appropriate uses of statistics and other inferential proof in class actions. It also shows that statistical techniques can be used by courts while allowing a defendant to assert individual defenses. Courts can do so by utilizing bifurcation or similar trial practices.

We formally demonstrate the general case for class action in a rent-seeking contest model, explaining why separate action adjudication is biased in the defendant's favor and collective adjudication is bias free. Separate action bias arises from the defendant's investment advantage in capitalizing on centralized control over the aggregate (classwide) stake in the common question defense, while the plaintiff, with only an individual recovery at stake, spends much less. Class action eliminates bias by enabling both parties to make their best case through centralized optimal classwide investments. Our social benefit-cost analysis shows that class action surpasses alternative methods for achieving bias-free adjudication.

To achieve more cost-effective deterrence of unreasonable risk-taking through civil liability, I propose and demonstrate previously unrecognized benefits of using simple random sampling to resolve multiple claims against a business or government defendant in the aggregate. I show that counter to intuition and prevailing assumptions and practice, simple sampling will enhance, not compromise, deterrent results regardless of the number of claims and the variety and significance of differences among them. Indeed, it can be used to resolve multiple claims that bear no resemblance to one another except for targeting the same defendant. The proposal can thus be employed to increase the efficiency of resolving relatively similar claims in class and consolidated actions and, by extending the application of such collectivizing processes, lower the cost of resolving all other claims that would be adjudicated as separate actions. I close by sketching a design for a reformed civil liability system that fully integrates and exploits the law enforcement benefits of sampling to better achieve the primary social objectives of accident risk deterrence and insurance.

Despite recent improvements in FDA regulation of medical product usage, the Agency still lacks the capacity for directly and immediately sending physicians updated warnings and other advisories and for continuously overseeing their treatment decisions and outcomes. We propose deploying electronic prescription technology to fill this major regulatory gap. Although this technology has received extensive expert and funding support for its ability to better perform the time-honored functions of paper prescriptions, we are the first to consider its use to further FDA regulatory objectives. We make the case that by interfacing the FDA with physicians and computerized patient records, e-prescriptions can greatly improve the Agency’s capacity to inform, guide, and monitor medical product usage. Designed to operate in a check-off format, e-prescriptions would not only provide physicians with salient risk and efficacy alerts, best-practice protocols, and links to studies, but also query and specifically document their reasons for choosing off-label or contraindicated uses. In addition, by automatically requesting reports from physicians and retrieving information from computerized patient records, e-prescription technology can supply the FDA with comprehensive, systematic, and real time data on medical product outcomes, favorable as well as unfavorable. We assess these benefits against the costs of our proposal, including the extent to which a well-designed system would burden physician decisionmaking and expose patients to unnecessary and abusive surveillance of their medical records and treatments.

By mandating that numerous plaintiffs litigate their common question claims separately in individual arbitrations rather than jointly in class action arbitrations, the Supreme Court in AT&T Mobility LLC v. Concepcion created a potent structural and systemic bias in favor of defendants. The bias arises from the parties’ divergent stakes in the outcome of the common question litigation in individual arbitrations: each plaintiff will only invest to maximize the value of his or her own claim, but the defendant has an incentive to protect its entire exposure, and thus will have a classwide incentive to invest more in contesting common questions. This investment advantage enables the defendant to wield superior litigation power against each plaintiff, skewing the outcome of individual arbitrations in its favor and frequently rendering claims not worth filing in the first place. Concepcion perpetuates the bias by precluding the use of a class arbitration solution. We propose that courts neutralize the Concepcion bias by appointing class counsel to represent each plaintiff in individual arbitrations. Without offending Concepcion’s prescriptions for maintaining the efficiency of arbitral procedures, in particular the general bar against class arbitration without express contractual authorization, the class counsel solution equalizes the parties’ investment incentives to transform individual arbitrations into a socially useful legal system for promoting the deterrence, compensation, and other public policy objectives of federal and state substantive law.

In this Essay, we show why and how to apply the average of differing state laws to overcome the choice of law impediment currently blocking certification of multistate, federal diversity class actions. Our main contribution is in demonstrating that the actual law governing a defendant’s activities involving interstate risk is in every functionally meaningful sense the same, regardless of whether it is applied in disaggregated form, state-by-state at great cost, or in aggregated form, on average at far less cost. We refute objections to using the average law approach, including that average law subjects defendants to a law of which they lacked notice at the time of the underlying conduct, fails to accurately reflect and enforce the substantive differences among the governing state laws, and undermines the sovereign lawmaking power of states to enact their distinctive policy preferences. To facilitate use of the average law approach, we also sketch the means for practically implementing the average law solution in different types of class action to determine a defendant’s aggregate liability and damages.

This essay discusses unlimited insurance subrogation (UIS) as a means of improving the deterrence and compensation results of medical malpractice law. Under UIS, health care insureds could assign their entire potential medical malpractice claims to their first-party commercial and government insurers. UIS should improve deterrence by establishing first-party insurers as plaintiffs to confront liability insurers on the defense side, leading to more effective prosecution of meritorious claims and reducing meritless and unnecessary litigation. UIS should improve compensation outcomes by converting litigation cost- and risk- laden "tort insurance" into cheaper and enhanced first-party insurance. UIS also promises dynamic benefits through further reforms by contract between the first-party and liability insurers that would take charge of system. No UIS-related costs are apparent that would outweigh these benefits.

In this Article, we focus on an important problem with mass-accident cases, a problem highlighted by the Deepwater Horizon litigation: overuse of courts to enforce contribution claims. These claims seek to allocate liability among the business and governmental entities that contractually participated in the risky venture. Joint and several liability with provision for contribution, for example, enables plaintiffs asserting primary claims to recover all proven damages from a single “deep-pocket” defendant, regardless of that defendant’s own share of legal responsibility for the harm, and then authorizes the defendant to sue other joint venturers to recoup payments in excess of its proportionate share of liability. The key point for our purposes is that contribution claims are entirely creatures of the joint venturers’ own making. Through a contract that establishes the terms of their joint venture relationship (“predispute contract”), the parties can exercise complete control over whether to subject themselves to contribution claims, and, if so, whether to resolve the claims by publicly funded courts or by a privately funded alternative, such as arbitration. Because the parties prosecuting and defending against contribution claims can consume judicial resources largely free of charge, it is likely they will choose to litigate in court to a greater extent than is socially desirable. The specific, socially detrimental result of such distorted litigation incentives is delayed resolution of cases that merit greater priority in gaining access to public judicial resources. Generally, these are cases in which the claimants lacked predispute contractual means to control risk and provide for nonjudicial alternatives, and hence the principal social benefits of deterrence and compensation depend on court-enforced civil liability. We argue that courts can effectively correct the contracting parties’ incentives by charging them for the cost of using the judicial process. Requiring contracting parties to pay their way in court would free up judicial resources to increase the average level of benefits from adjudication. Such a user fee, as we show, can be extended to almost all commercial-contract cases.

This Essay proposes a new method of monitoring regulatory compliance by a firm that operates multiple sources of risk, such as air polluting smokestacks. The expense of individually monitoring such sources may consume a large share of the agency's enforcement budget, undermining deterrence objectives. Under our approach, regulators would instead randomly select one of the firm's sources of risk, determine the firm's liability at that source, and apply that outcome perforce as determinative of liability at all of the sources. This method, which we call single-outcome sampling (“SOS”), replicates or improves deterrence generated by the current source-by-source enforcement model, but at a fraction of the cost. To demonstrate these benefits, we apply SOS to the EPA's monitoring of compliance with Clean Air Act regulations. We also address potential risk-bearing and judgment-proof costs associated with our proposal and explain how both problems can be solved.

Does Richard Posner lead a double life as scholar and judge? Posner’s prodigious and prolific scholarship, developing and applying the functionalist, rational approach (he might call it economic or pragmatic) in virtually every field of law, ranks him among the greatest legal thinkers. It also places him at the forefront of the revolutionary assault on the formalist establishment’s continuing dominance of the teaching, and therefore the practice, of law. Indeed, scholarly Posner seems to relish the role of provocateur; witness his recent contribution in these pages skewering the pontiffs of constitutional law. But what of Judge Posner, now marking his twenty-fifth year on the Court of Appeals for the Seventh Circuit? In that time he has served a lengthy term as Chief Judge and authored volumes of opinions. Besides wondering how he does it all, I want to know how Posner squares the role of judge with that of scholar provocateur. Is he a judicial Clark Kent, passing himself off as a mild-mannered, droll, keen-witted judge, wearing glasses and a black robe as a disguise, only to throw them off to write seditious tracts and save the world? Some clues may be found in Indiana Harbor Belt Railroad Co. v. American Cyanamid Co., a Posner opinion that has become a basic staple of torts courses on the preeminent question of when it is better to use negligence or strict liability. After commenting on the importance as well as the problematics of this opinion, I surmise what he might actually be up to — all in tribute to the judicial Posner.

This paper proposes a solution to many of the basic problems with the current system of medical malpractice liability. By all accounts, despite consuming more than $20 billion annually, this system has proven ineffective and probably counterproductive as a means of deterrence and source of insurance. High litigation cost precludes or suppresses vigorous prosecution of most meritorious claims, while it motivates filing of unmeritorious claims for nuisance value payoffs. Patients are compelled to buy "tort insurance" that not only doubles the coverage for economic loss they already have and can cheaply supplement from commercial and governmental suppliers of first-party insurance, but also mandates coverage for non-pecuniary harm that no one wants if they have to pay higher premiums and taxes to get it. The solution is simply to change the law of insurance subrogation as it applies to insurers acquiring their insureds' tort claims. Currently the rule limits subrogation to the amount an insurer paid in covering its insured's loss. The proposed change would allow insurers to acquire their insureds' potential malpractice claims without limitation, including recovery of all damages, non-pecuniary as well as economic. In short, the paper proposes unlimited insurance subrogation (UIS) as a natural and efficient vehicle for patients to assign their entire potential malpractice claims to their first-party insurers. UIS will thereby improve both deterrence and insurance results of medical malpractice liability. By making first-party insurers plaintiffs and placing them on the same footing as their defense-side counterparts, liability insurers, UIS should increase the rate at and effectiveness with which meritorious claims are prosecuted and also reduce meritless litigation, as these large-scale, longterm repeat players will possess the needed means of mutual deterrence and motive for mutual cooperation. At the same time, as first-party insurers lower premiums (and taxes) in anticipation of subrogated claim recoveries, UIS will operate to convert expensive, risky, dilatory, and to a large extent unwanted tort insurance into a greater amount of more optimal first-party insurance. In addition to these direct benefits, UIS should encourage first-party and liability insurers to establish by contract a "private" system for more efficaciously resolving medical malpractice claims. The paper addresses possible costs of UIS, notably loss of patient cooperation in subrogation suits and jury sympathy for plaintiffs; none is found to pose a substantial problem.

This Article proposes a new method of reducing the costs administrative agencies incur in monitoring regulatory compliance by a firm that operates multiple sources of risk, such as air-polluting smokestacks. The expense of individually monitoring such sources directly may consume a large share of the agency's enforcement budget. Under our proposal, regulators would instead randomly select one of the firm's sources of risk, determine the firm's liability at that source, and apply that outcome perforce as determinative of liability at all of the sources. The proposal significantly reduces monitoring costs because agencies need to monitor only one source of risk to replicate the deterrence generated by the source-by-source approach that regulators currently use. To indicate the potential benefits, we apply the proposal to EPA monitoring of compliance with regulations limiting pollution under the Clean Air Act. We also address potential risk-bearing and judgment-proof costs associated with the use of our proposal and explain how both problems can be solved.

This paper proposes a solution to many of the basic problems with the current system of medical malpractice liability. By all accounts, despite consuming more than $20 billion annually, this system has proven ineffective and probably counterproductive as a means of deterrence and source of insurance. High litigation cost precludes or suppresses vigorous prosecution of most meritorious claims, while it motivates filing of unmeritorious claims for nuisance value payoffs. Patients are compelled to buy "tort insurance" that not only doubles the coverage for economic loss they already have and can cheaply supplement from commercial and governmental suppliers of first-party insurance, but also mandates coverage for non-pecuniary harm that no one wants if they have to pay higher premiums and taxes to get it. The solution is simply to change the law of insurance subrogation as it applies to insurers acquiring their insureds' tort claims. Currently the rule limits subrogation to the amount an insurer paid in covering its insured's loss. The proposed change would allow insurers to acquire their insureds' potential malpractice claims without limitation, including recovery of all damages, non-pecuniary as well as economic. In short, the paper proposes unlimited insurance subrogation (UIS) as a natural and efficient vehicle for patients to assign their entire potential malpractice claims to their first-party insurers. UIS will thereby improve both deterrence and insurance results of medical malpractice liability. By making first-party insurers plaintiffs and placing them on the same footing as their defense-side counterparts, liability insurers, UIS should increase the rate at and effectiveness with which meritorious claims are prosecuted and also reduce meritless litigation, as these large-scale, longterm repeat players will possess the needed means of mutual deterrence and motive for mutual cooperation. At the same time, as first-party insurers lower premiums (and taxes) in anticipation of subrogated claim recoveries, UIS will operate to convert expensive, risky, dilatory, and to a large extent unwanted tort insurance into a greater amount of more optimal first-party insurance. In addition to these direct benefits, UIS should encourage first-party and liability insurers to establish by contract a "private" system for more efficaciously resolving medical malpractice claims. The paper addresses possible costs of UIS, notably loss of patient cooperation in subrogation suits and jury sympathy for plaintiffs; none is found to pose a substantial problem.

This essay sketches a new approach to ameliorating the problem of coordinating the use of private class actions and public policing to enforce American antitrust law. Achieving the optimal joint level of enforcement from any system that teams public and private law enforcers requires a coordination mechanism to assure not only that each makes the appropriately motivated and proportionate investment of resources and effort, but also that their respective litigation and settlement decisions are properly synchronized and combined. Our proposal addresses this double-sided coordination problem with a sequential enforcement mechanism. In essence, the system would work as follows: (i) total enforcement license initially vests with the public enforcer; (ii) public enforcer auctions private license to enforce a mandatory-litigation class action; (iii) winning bidder retains recovery from class judgment or settlement; (iv) auction proceeds are deposited with and immediately distributed by the court for compensatory purposes; and (v) public enforcer has option to buy back the private license at the winning bid price. Our approach is superior to the current judicial methods of coordination, which are undertaken through a process of applying doctrines of pre-emption, statutory interpretation, and class action prerequisites. These judicial methods are haphazard and are hampered by courts' information deficits. Our approach is also preferable to proposed statutory reforms that would give public authorities exclusive power to prosecute or terminate the class action on their own, or to intervene and exert some control over private enforcement actions. Our approach affords public enforcers these same options to control the use of class actions. Unlike our approach, however, such reform proposals make no attempt to deal with the problem of giving public authorities appropriate incentives in the decision whether to interfere with private enforcement actions.

A solution to a broad category of nuisance suits is examined in this paper. The solution is to give defendants the option to have courts prevent settlements (by refusing to enforce them). Then, if a defendant knows he is facing a plaintiff who would not be willing to go to trial, the defendant would exercise his option to bar settlement, forcing the plaintiff to withdraw. And because the plaintiff would anticipate this, he would not bring his nuisance suit in the first place.

This Essay advances a simple proposal that could reduce civil litigation costs in the country by about half, yet without compromising the functioning of our liability system in a significant way. The proposal has two parts. First, courts would select randomly for litigation only half the cases brought before them; courts would not allow the other half to proceed. Second, in cases accepted for litigation and in which judgments for damages issue, courts would double the level of damages. Thus, the proposal might be described as one of random adjudication with dobule damages.

This paper argues that a mandatory class action rule - mandatory both in automatic certification and no opt-out - offers the most effective means of accomplishing the deterrence and compensation objectives of the civil liability system in Mississippi. Class action adjudication would proceed by decoupling the deterrence and compensation functions: at the deterrence stage, the court would determine total aggregate liability and assess damages equal to the total level of sanctionable harm; at the compensation stage, the court would distribute damages to class members based on relative severity of loss in accord with the general theory and practice of insurance. This decoupled structure overcomes the endemic conflict between deterrence and compensation objectives, enabling the civil liability system not only to motivate mass production defendants to invest optimally in precautions, but also to promote the goal of optimal insurance. The paper goes on to discuss several core questions concerning the design and management of mandatory class actions, including the timing and scope of aggregation, settlement-only versus litigation class certification, multi-state class actions, and the problems of "blackmail" and "sweetheart" settlements. We also examine instrumental and individualistic arguments opposing mandatory collectivization and favoring opt-out class actions, such as Rule 23(b)(3), Fed. R. Civ. P. Our overall conclusion is this: nothing short of complete, mandatory collectivization of all claims assures that the civil liability system can maximize individual welfare by optimally deterring unreasonable risk and optimally compensating harm from residual, reasonable risk.

U.S. Judicial Conference endorsement of a "second opt-out opportunity" for class action settlements to supplement the option for pre-certification exit under Rule 23(b)(3) is retrograde. It represents a victory for the myopic "proceduralist" way of thinking and a loss for everyone whose welfare depends on federal class action enforcement of tort and other civil liability to prevent and compensate harm resulting from business risk-taking ("mass production risks"). To be sure, the Conference merely provides explicit authority for what is already widespread practice, but that hardly excuses making matters worse. Indeed, the Conference, as the author of the basically flawed 1966 revisions of Rule 23, had - and irresponsibly squandered - the legislative chance to make matters much better. At minimum, it should have applied advances in theoretical and empirical understanding of the social benefits derived from collectively adjudicating civil liability in business risk-taking cases not only to reject the "second opt-out," but also to eliminate the requirement for pre-certification opt-out.

In Making Tort Law: What Should Be Done and Who Should Do It, Harvard law professors Charles Fried and David Rosenberg note that the system of tort liability in the United States seeks to achieve a variety of aims: to compensate individuals injured by the risky business activities of large entities; to create incentives for those entities to take into account the dangers of their activities in the design of their processes, products, and services; and to allow individuals who feel powerless to make their grievances felt against large, impersonal, and sometimes unresponsive organizations. The authors contend, however, that our current tort system is almost certainly not the best possible way to achieve those goals. At best, they claim, compensation represents an uncertain, delayed, and expensive form of insurance. In addition, the disciplining effect on business is haphazard. Fried and Rosenberg assess the comparative advantages of courts and legislatures in taking the initiative of changing tort law to further the social objective of optimally managing accident risk. They conclude that the nature of the change involved–particularly the function that the change would serve and the means that would work best–strongly suggests that the legislature should play the major role in designing tort reform. And they contend that automobile and other nonbusiness-related accidents should be eliminated from the tort system.

This paper focuses on situations in which numerous plaintiffs have similar, but independent claims for substantial damages against the same defendant. These cases frequently result in the prosecution of multiple separate actions and the waste legal resources in duplicative litigation. All else being equal, the legal system could achieve substantial economy by avoiding litigation of "common questions" more-than-once, and instead adjudicating them once-and-for all. The paper describes the relative cost-effectiveness of three alternative means for avoiding duplicative litigation of civil actions for damages: class action, collateral estoppel and leaving the matter to the standard process for separate action driven by market forces. The class action design I consider aggregates all similar claims, regardless of whether they are pending or even accrued, on a mandatory basis, with on option for exit (opt-out) by class members. Regarding collateral, I propose and examine a "two-way" regime that expands the prevailing rules by extending the benefits or detriments of final judgment in the first case to preclude both defendant and non-party plaintiffs from relitigating common questions in subsequent cases. The third regime employs market forces to reduce duplicative litigation. My central conclusions are that while, as an abstract matter, two-way collateral estoppel and class action have comparable capacity to avoid duplicative litigation, under currently governing rules and practice both alternatives entail high management costs. Courts are likely to incur more expense in managing class action. However, analysis indicates that two-way collateral estoppel fails to control duplicative litigation as effectively as class action; indeed collateral estoppel itself creates incentives for the parties to engage in unavoidable, duplicative litigation that offsets its administrative cost advantage. I also conclude that the separation process poses less of a problem of duplicative litigation than is commonly assumed. Indeed, some degree of duplicative litigation may be socially desirable. Moreover, my analysis suggests that the separate action process may prove the most cost-effective means of avoiding the residuary of inefficient duplicative litigation. Finally, I reject the general objection to two-way collateral estoppel that it systematically vests defendant's with higher stakes than plaintiffs, and thus distorts the accuracy of adjudication, undermining the ability of civil liability to minimize the sum of sum of accident costs. Asymmetrical investment incentives favoring institutional (mass production) defendants against individual plaintiffs is the baseline of the civil system as established by the standard market process Confronting a series of similar claims, the common defendant will exploit scale economies to invest at the optimal level that maximizes aggregate net benefit from litigating common questions. The investor in a single or even a large fraction of claims on the plaintiffs' side lacks the scale economies and consequent investment incentives equivalent to defendant's opportunities. This asymmetry in opportunity to exploit scale economies is eliminated by class action. Two-way collateral estoppel exacerbates the asymmetry in defendant's favor - it does not create it - but that only strengthens the case for class action to equalize plaintiffs' litigation power with that of defendant's.

This essay analyzes the benefits of a tort system in which commercial and governmental first-party insurers acquire complete ownership and control over the prosecution and proceeds of their insureds' prospective tort claims. Under the regime of unlimited subrogation ("US"), insurers would treat tortious injury like any other covered risk thus paying an insured only for pecuniary loss (e.g., medical costs, lost income, etc.) according to standard policy (or program) terms. In return, insureds would receive payment in the form of reduced premiums (or taxes) or other financial benefits, equaling the aggregate average amount the insurer expects to recover in tort damages. US would replace the governing common law and statutory bars against insurers taking a subrogation or assignment interest beyond the amount that would reimburse them for payments made or promised the inured. In particular, US would allow subrogation of personal injury claims in full, including the potential recovery of non-pecuniary, punitive, and other damages in excess of the insurance benefits received by the insured. Allowing insureds to transfer ownership of potential tort claims to first-party insurers will directly improve insureds' welfare on three dimensions: 1. Insurance: Reducing insurance premiums not only makes risk averse individuals wealthier in their uninjured condition, but also negates the compulsory "premium" (pass-through) they pay to prospective defendants through adjusted product- and labor-prices for unwanted "tort insurance" against non-pecuniary harm. 2. Deterrence: Tort liability promotes deterrence goals, including through price effects, without need for compromising insurance goals; indeed, law enforcement will be enhanced by harnessing the litigation advantages of first-party insurers: risk-neutrality, scale economies, and the investment incentives of outright ownership of tort claims. 3. Administrative Productivity: Processing of tort claims would be streamlined - with insurers also serving as mass tort class action representatives - reducing costs not only on plaintiffs' side but also for defendants and the courts. In the long-term, there is the promise of three broader benefits. First, first-party insurer ownership of potential tort claims could catalyze an ex ante claims-market, in which consortia of lawyers and other investors would compete against insurers to purchase and prosecute prospective tort claims. Competitive ex ante claims markets (including secondary markets for claim re-sale and aggregation) provide the most efficient and effective means of achieving the deterrence ends of tort liability and generating the highest clearing price for sellers of potential tort claims. Second, the emergent ex ante claims market would establish both incentives and framework for first-party and liability insurers (joined by potential business defendants) to effect substantive and procedural tort reforms by contract. Finally, by rendering the tort system more efficient, the ex ante claims market would set the stage for legislatures to enact discretely targeted, theoretically sound reforms.

Mass tort cases involving serious personal injury are generally deemed inappropriate for class action treatment. It is presumed that in these cases adjudicative costs of determining non-common questions to individualize class members' recoveries negate judicial economies from trial of common questions on a class-wide basis. This presumption defies logic, lacks empirical substantiation, and most troubling for a legal system devoted to enhancing individual welfare, takes no account of the adverse tort deterrence and insurance consequences of relegating claims to the standard process of separate actions. Indeed, the presumption seems less the product of analysis than habit--the convention of resolving class actions by “integrated” final judgment that cumulates the results of common and non-common question trials. Under this form of judgment, success for the class and its counsel is contingent not only on their collectively winning class-wide trial of the common questions, but also on the extent to which each class member recovers damages in separate trial of the non-common questions. In effect, the integrated judgment holds class action deterrence benefits hostage to the costs and contingencies of individualizing compensation for class members, and in the process thwarts both objectives. This essay proposes to solve this problem by decoupling deterrence from compensation functions of mass tort class action. In particular, decoupling would result in two, separate final class rulings and related fee awards. The first ruling would issue upon class-wide trial of the common questions that determines aggregate liability and damages. This determination is sufficient for deterrence purposes. Because mass torts arise from the systematic risks of mass production processes and goods (products and services), the only questions of relevance to deterrence are common and indeed mostly statistical. The second ruling (assuming the class wins the first) would take the form of an insurance fund judgment that prescribes the terms and conditions for distributing the aggregate damage award (or the commercial insurance coverage that the award purchases) to compensate specified losses as far as practicable and if and when class members incur them. Distributing the fund for maximum insurance benefit eliminates much of the costly individualization. Significantly, even if the costs of individualizing severity of loss and deterrence incentives (e.g. contributory negligence) for insurance purposes preclude or reduce compensation for some fraction of class members (smaller than in the more costly and risky separate action process), decoupling fully achieves deterrence goals and thus makes everyone better off.

Defendants litigate common questions in mass tort claims from the posture of a de facto class action, allowing them to exploit economies of scale. In contrast, plaintiffs' claims are rarely 100% aggregated, preventing plaintiffs from making the optimal investment in common questions to maximize the aggregate and individual value of their claims. This Essay explains the advantages of scale economies and discusses the social costs of the systemic bias favoring defendants over plaintiffs. The author argues that this systemic bias can be corrected through mass tort class actions.

In this Article, Professor Rosenberg discusses the perceived problem of Individualjustice in collectivized adjudication of mass-exposure cases. He focuses on risk-based claims-i.e., those claims predicated on exposure to a tortlously Imposedrisk, rather than on actual harm and loss-to argue for greater collectivization.Finding that standard procedural analyses are deficient, Professor Rosenberg callsfor consideration of collectivization from the perspective of the deterrence andcompensation policies underlying tort law generally and risk-based claims specifi-cally. He demonstrates that deterrence offers the strongest-if not only-justfica.tion for such claims, and that collectivization enhances the deterrence goal in mass-exposure litigation. In addition, Professor Rosenberg explains that collectivizationalso promotes individual justice by providing plaintiffs with the levels of compensa-tion and insurance that they would rationally select on their own, and that collectiv-ization is consistent with objective standards used to determine both liability anddamages in tort law. Based on this analysis, Professor Rosenberg concludes that Ifallowed to choose the process for adjudicating and settling mass-exposure cases,individuals would select mandatory collectivization.

Joint and several liability can be an effective instrument for regulating the risk of and compensating the losses from toxic torts. The doctrinal evolution of the joint and several rule from one concerned primarily with concerted and joint ventures to its expansive, modern application in toxic tort cases which involve numerous, independently operated firms is sketched. Fairness and efficiency objections are discussed and brief concluding observations are given.