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phenomenon, depending on one’s frame of reference. The aphorism is, “If we build it,
they will come.” Professor McGovern’s writings convert the aphorism into a more qualified
prescription: “Don’t build the highway prematurely,” a prescription that calls for subtle
judgments about the life cycles of cases, maturity, elasticity, and judicial roles.16
Problems with costs and delays may also have been compounded by the elusive search
for a comprehensive solution. For example, Chapter 11 reorganizations represented an
inescapable resolution for many asbestos defendants. In the natural course of handling
each reorganization separately, the parties and the courts have created a proliferation of
asbestos claims resolution facilities that appear to generate unnecessarily duplicative transaction
costs and may also contribute to further delay in the final resolution of claims.17
Unavoidably, it seems, solutions give birth to a new generation of problems.
D. Idealized criteria
One approach to identifying mass torts problems is to examine the general principles
underlying proposals to reform the mass torts system. The gap between those principles
and the apparent reality of reported experiences represents a measure of the problems. As
noted above, this approach ignores the baseline problems in ordinary litigation and seeks
a more perfect resolution of mass torts cases.
Judge Jack Weinstein has advanced seven desirable criteria for addressing the demands
of mass torts litigation:
1) The concentration of decisionmaking in one or a few judges; 2) a single forum responsible
for resolving legal and factual issues; 3) a single substantive law; 4) adequate
judicial support facilities; 5) reasonable fact-finding procedures, particularly as to scientific
issues; 6) a cap on the total cost to defendants such as by limiting punitive damages
and allocations for pain and suffering and a method of allocating the cost among
multiple defendants; and 7) a single distribution plan with fairly inflexible scheduled
payments by injury based on the need of those injured, rather than the social and economic
status of plaintiffs, and tailored to the availability of private resources.18
16. See id. at 1841–45.
17. At the urging of Judge Charles Weiner, the Judicial Panel on Multidistrict Litigation considered transferring
all of the bankruptcy cases to Judge Weiner’s court for coordinated or consolidated proceedings. In
the face of “serious concerns that transfer would adversely impact the . . . bankruptcy cases,” the panel declined
to consolidate the proceedings and urged the bankruptcy judges and Judge Weiner to coordinate their
efforts. In re Asbestos Bank. Litig., No. 950, Order (J.P.M.L. Dec. 9, 1992).
18. Jack B. Weinstein, Individual Justice in Mass Tort Litigation 131–32 (1995), quoted in Francis E.
McGovern, Judicial Centralization and Devolution in Mass Torts, 95 Mich. L. Rev. 2077, 2082 (1997) [hereinafter
McGovern, Centralization and Devolution].
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