David Rosenberg, Mandatory-Litigation Class Action: The Only Option for Mass Tort Cases, 115 Harv. L. Rev. 831 (2002).
Abstract: 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.