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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