Turning From Tort to Administration

My objective here is to challenge the notion that the recent mass tort settlements - for all their novel qualities in the mass tort area - are truly sui generis in the law. Rather, I contend that the rise of such settlements in tort mirrors the development of public administrative agencies earlier in this century - that, in both instances, powerful new institutions emerged outside preexisting channels of control to wield significant power over human lives and resources. I argue that courts usefully may draw upon familiar doctrines of judicial review in administrative law to form a conceptual framework for their analysis of mass tort settlements under Rule 23( e ). In other words, not only should the law turn from tort to administration in terms of the compensation system for mass tort plaintiffs, it also should make a similar shift in perspective when it comes to judicial review.

Such an administrative perspective is not without its own limitations, however, and recognition of those constraints may point the way toward an agenda for further developments in public law.