Faculty Bibliography

This article provides a response to Richard Nagareda's proposal in "Autonomy, Peace, and Put Options in the Mass Tort Class Action." It focuses on Nagareda's prescriptive claims about what the put option class settlement can achieve within the doctrinal constraints he presumes, rather than on the validity of his interpretation of cases and statutes. Part I summarizes Professor Rosenberg's normative argument that mandatory-litigation class action best deters accidents and insures against accident risks, thus securing maximum individual welfare ex ante. This argument provides a critical basis for assessing the social benefit that Nagareda's proposal sacrifices, the state of the law it presumes, and the prevailing judicial and scholarly opinion it represents. Part II employs the framework outlined in Part I to critique "put option" class action in detail, showing the deficiency and disutility of its design.

This bold book challenges a contemporary consensus on the titanic figure of Oliver Wendell Holmes. Holmes is the acknowledged source of twentieth-century tort law, but David Rosenberg takes sharp issue with the current portrayal of Holmes as a legal formalist in torts who opposed the notion of strict liability and dogmatically advocated a universal rule of negligence, primarily to subsidize industrial development. Marshaling the evidence found in Holmes' classic "The Common Law" and other writings, the author reveals that the opposite was the case, and, in the process, raises troubling questions about the present state of legal scholarship.

Mass exposure accidents, such as those involving DES and asbestos, pose unique problems under the traditional rules and methods of "private law" litigation. Two problems stand out: first, the preponderance-of-the-evidence rule often makes it impossible for plaintiffs to prove causation; second, the substantial costs of litigating mass exposure claims on a case-by-case basis make such claims unattractive to plaintiff attorneys. Professor Rosenberg argues that the resulting preclusion of mass exposure claims frustrates the basic deterrence and compensation objectives of the tort system. He proposes that courts determine causation under a proportionality rule, which would hold manufacturers of toxic agents liable for the proportion of total injuries attributable to their products. In addition, he argues that courts should allow mass exposure cases to proceed as class actions and should employ such innovative remedial techniques as damage scheduling and insurance fund judgments. These "public law" measures, according to Professor Rosenberg, would improve the tort system's ability to fulfill the goals of maximizing social welfare and protecting individual entitlements.