Issacharoff & Klonoff on the Mass Tort Settlements

Samuel Issacharoff (NYU) & Robert Klonoff (Lewis & Clark) have just posted “The Public Value of Settlement” on SSRN.  Here is the abstract:

Thisarticle, part of a symposium honoring the 25th anniversary of OwenFiss’s Against Settlement, takes issue with the basic premise thatsettlement indicates defeat of the weak by the powerful, the poor bythe rich, the injured by the wrongdoers. The argument is both empiricaland normative. On the empirical side, this article challenges the basicclaim advanced by Fiss and Marc Galanter that repeat players in thecourts of justice are more likely to prevail because they will marshaland deploy greater resources. Over the past quarter century, theemergence of the well-heeled plaintiffs’ firm together with referraland other market organizing practices have allowed plaintiffs to fightand defeat institutional defendants across all sorts of mass harmcases. Normatively, this article challenges the assumption that thedriving organizational framework of the court system should be derivedfrom the structural injunction that characterized an episodic phase ofthe civil rights movement. Instead, resolution of mass harms has beenand continues to be one of the great challenges of the judicial system,a process for which settlement is a critical and likely inescapablecomponent.

ADL