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12 Conn. Ins. L.J. 255 (2005-2006)
Asbestos Litigation in the United States: Triumph and Failure of the Civil Justice System

handle is hein.journals/conilj12 and id is 263 raw text is: ASBESTOS LITIGATION IN THE UNITED STATES:
Deborah R. Hensler
Over the past several years, asbestos litigation has become the poster
child for the tort reform movement in the United States. Asbestos
litigation is frequently described as an entirely non-meritorious litigation,
driven by greedy plaintiff attorneys who seek only to line their own pockets
and by greedy plaintiffs who have crowded onto the gravy train to easy
money. This view is expressed with varying degrees of hyperbole by
prominent editorialists, legal scholars, and judges, and has fuelled calls for
congressional action to remove asbestos litigation from the courts.'
The portrayal of asbestos litigation as a symbol of the failures of the
civil justice system has crowded out an earlier view of asbestos litigation as
the culmination of a long, hard battle to remove asbestos from the
workplace and compensate workers who had been injured by asbestos, in
some instances as a result of deliberate decisions by manufacturers to
withhold information about the potential harmful effects of working with
asbestos products. To those who celebrated asbestos litigation, the plaintiff
lawyers who nurtured it through hard-fought adversarial battles were heroic
* Judge John W. Ford Professor of Dispute Resolution, Stanford Law School. This
paper draws heavily on research that I have conducted previously in collaboration with my
former colleagues at the Rand Instiiute for Civil Justice, especially STEPHEN CARROLL ET
THE CHALLENGE OF MASS Toxic TORTS (1985). Those monographs, in turn, drew on a rich
literature of asbestos litigation and disease, which is detailed in the monographs'
bibliographies. In this article, I cite the leading non-Rand research on asbestos, but for
brevity, I rely heavily on the Rand monographs, rather than the underlying works that those
monographs cite. Unless otherwise indicated, my Rand collaborators and I collected and
analyzed the numerical data on asbestos filings, costs and outcomes that are reported here
and the descriptions of litigation strategies and procedures are based on our qualitative data
collection and analyses. In assessing those findings, readers may find it useful to know that
all Rand monographs are peer reviewed. Although I draw on Rand publications in this
article, the interpretations of the data and perspectives on asbestos litigation are my own and
not those of Rand or its supporters.
1. See, e.g., Editorial, Asbestos ofAll Possible Worlds?, WALL ST. J., July 2, 1999, at
Al; Editorial, Screening for Corruption, WALL ST. J., Dec. 2, 2005, at Al.

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