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10 Rev. Litig. 463 (1990-1991)
Administering Damage Awards in Mass-Tort Litigation

handle is hein.journals/rol10 and id is 469 raw text is: Administering Damage Awards in Mass-Tort Litigation Samuel Issacharoff* Table of Contents I. Introduction ............................ 463 II. Problems of Individuated Proof ................. 467 III. Administrative Models for Apportioning Damage Awards . . 470 A. Contract-Based Damage Cases .............. 472 B. Tort Cases ......................... 475 1. Closed Classes ..................... 477 2. Nonclosed Classes ................... 478 IV. The Role of the Jury in Setting Damages ............ 480 V. Judicial Management and Classwide Damages ......... 487 A. Crafting Administrative Trial Models ............. 487 B. The Expanded Use of Rule 23(a)(3) .. ........... 489 VI. Conclusion ................................ 493 I. Introduction Mass-tort litigation has placed the courts under siege.' More so than any other single development, the courts' inability to counter the press of this litigation has forced a dramatic reeval- uation of the judicial system's ability to do justice in any meaningful way. Mass-tort litigation has provoked extensive com- mentary on topics as diverse as the role of class actions,2 court * Assistant Professor, The University of Texas. B.A. 1975, State University of New York at Binghamton; J.D. 1983, Yale University. The author assisted in the special master project in the Cimino v. Raymark Indus., Inc. litigation conducted by Professor Jack Ratliff, and many of the ideas presented here were developed in conjunction with my colleagues Jack Ratliff and Charles Silver. The views expressed, however, are neces- sarily the author's own. This Article benefitted from the helpful comments of Cynthia Estlund, Douglas Laycock, Linda Mullenix, William Powers, and Edward Sherman, and from Cynthia Dooley's outstanding research and editorial help. 1. For a good overview of the strain on the courts, see Rubin, Mass Torts and Litigation Disasters, 20 GA. L. Rnv. 429, 430 (1986). 2. Slowly, the courts have come to reevaluate the traditional view of the class action as an exception. See Califano v. Yamasaki, 442 U.S. 682, 700-01 (1980) (articulating traditional view of exceptional role of class action as departure from the rule that litiga- 463

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