David Rosenberg, Individual Justice and Collectivizing Risk-Based Claims in Mass-Exposure Cases, 71 N.Y.U. L. Rev. 210 (1996).
Abstract: 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.