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1991 U. Ill. L. Rev. 269 (1991)
The Effect of Equity on Mass Tort Law

handle is hein.journals/unilllr1991 and id is 281 raw text is: THE EFFECT OF EQUITY
ON MASS TORT LAWt
Jack B. Weinstein *
Eileen B. Hershenov**
I. INTRODUCTION
We intend to explore briefly the effect of equity doctrine on the de-
veloping modem        law  of mass torts in the United States-in both the pro-
cedural and substantive areas. Procedure and substance are so
intertwined that they must be considered together to obtain a realistic
picture of equity's effect.
By mass torts we refer to the massive civil litigations we have wit-
nessed over the past two decades, such as the asbestos (175,000 worker
claims and growing), Agent Orange (250,000 claims), Dalkon Shield con-
traceptive (195,000 claims and 20,000 more expected), radiation expo-
sure, and diethylstilbestrol (DES) litigations, to name several of the most
t This paper constitutes an expansion of remarks and a paper delivered by Jack B. Weinstein
at the First International Conference on Equity, The Hebrew University School of Law, Mount Scopus,
Jerusalem, Israel, June 1990, and sessions of the A.LI./A.B.A. teaching conferences and seminars at
Columbia University and Brooklyn Law School on complex litigation and individual justice in a mass
society given by the senior author from 1989 to 1991.
Experience of the senior author with asbestos litigation in 1990 in trying scores of New York Navy
Yard and other cases and in bankruptcy and Federal Rule of Civil Procedure Rule 23(b)(l)(B) class
actions confirms the views expressed in this paper. Nevertheless, the recent specific asbestos problems
are so complex that only passing reference has been made to them in this article. They warrant
separate treatment in a future series of papers or conference& See, e.g., In re Joint E. & S. Dist
Asbestos Litig. (In re Johns-Manville Corp.; Findley v. Blinken), 120 Bankr. 648 (E.D.N.Y &
S.D.N Y 1990) (memorandum on stays in class action pursuant to Rule 23(b)(l)(B) to restructure the
Manville Personal Injury Settlement Trust); In re Joint E & S. Dists. Asbestos Litig. (Loper v. Eagle-
Picher Indus.; Liebson v. Raymark Indus.; Schaefer v. Celotex Corp.). 132 FR.D. 332 (E.D.N. Y &
S.D. N. Y 1990) (memorandum appointing class counsel and special settlement master in class action
pursuant to Rule 23(b)(1)(B) seeking to consolidate all personal injury and wrongful death asbestos
cases against Eagle-Picher Industries), In re Joint E. & S. Dists. Asbestos Litig. (In re Eagle-Picher
Indus.; White v. Eagle-Picher Indus), Class Civ. Action No. 90-4253 (E.D.N. Y. & S.D.N. Y Dec. 12,
1990) (1990 U.S. Dist. LEXIS 18126) (memorandum on stays in class action against Eagle-Picher); In
re Joint E & S. Dists. Asbestos Litig. (In re Eagle-Picher Indus.; White v. Eagle-Picher), Class Civ.
Action No. 90-4253 (E.D.N.Y. & S.D.NY       Dec. 21, 1990) (1990 U.S. Dist. LEXIS 17447)
(memorandum denying disqualification of appointed counsel in Eagle-Picher).
*   Judge, United States District Court, Eastern District of New York- Adjunct Professor, Co-
lumbia and Brooklyn Law Schools. B.A. 1943, Brooklyn College; LLB. 1948, Columbia Law School.
•*   Karpatkin Fellow, American Civil Liberties Union. Law clerk to Judge Jack B. Weinstein,
1989-90. J.D. 1989, Yale Law School.
We acknowledge our debt to Theresa Gorski, J.D. Columbia Law School 1990, for her valuable
research on the equitable antecedents of class actions and consolidations, only a portion of which has
been used in this paper. The authors also wish to thank Judith Resnik Sol Schreiber, Rob Kushen,
and Jeff Powell. Finally, our gratitude goes to our able editors, Adam Hoeflich and John Mill.

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