Volume 71, Number 1

April 1996

Individual Justice and Collectivizing Risk-Based Claims in Mass-Exposure Cases

David Rosenberg

In this Article, Professor Rosenberg discusses the perceived problem of Individual justice in collectivized adjudication of mass-exposure cases. He focuses on risk based claims—i.e., those claims predicated on exposure to a tortiously imposed risk, rather than on actual harm and loss—to argue for greater collectivization. Finding that standard procedural analyses are deficient, Professor Rosenberg calls for consideration of collectivization from the perspective of the deterrence and compensation policies underlying tort law generally and risk-based claims specifically. He demonstrates that deterrence offers the strongest—if not only—justfication for such claims, and that collectivization enhances the deterrence goal in mass-exposure litigation. In addition, Professor Rosenberg explains that collectivization also promotes individual justice by providing plaintiffs with the levels of compensation and insurance that they would rationally select on their own, and that collectivization is consistent with objective standards used to determine both liability and damages in tort law. Based on this analysis, Professor Rosenberg concludes that if allowed to choose the process for adjudicating and settling mass-exposure cases, individuals would select mandatory collectivization.