Mass torts involve vast economic, political, and social interests and are uniquely difficult for the judicial system to resolve. The thousands of personal injury cases, class actions, and state lawsuits brought against the tobacco industry over the past forty years has been subject to many of the same problems which complicate other mass torts. However, tobacco litigation has taken an unusual turn for mass tort litigation. A settlement negotiated between the tobacco industry and the state attorneys general proposes a legislative settlement of tobacco litigation along with changes to the regulatory regime governing tobacco products. The prospect for a legislative resolution of a mass tort appears more likely than ever with the tobacco settlement.
This report considers the proposed legislation through the prism of two competing legislative theories: public choice theory and public spirit theory. As the tobacco experience shows, legislative resolution of mass torts ensures that interests not traditionally parties to litigation may participate in democratic debate and have an opportunity to be considered by political representatives. Those groups, such as public health groups, which have most clearly and persuasively defined the public interest, have proven to be more influential than resource-rich groups such as the tobacco lobby or plaintiffs lawyers. Thus, legislative resolution of mass torts may serve to elevate the interest of the general public above those of narrow special interest. Yet, while from a normative perspective, the legislature may be the preferable forum for resolving some mass torts, it may not offer real practical advantages to the judicial system. As the most recent political events demonstrate, the dynamics of the political process itself may fundamentally threaten the prospect that the proposed tobacco settlement offers a pessimistic outlook as a precedent for resolution of future mass torts through legislation.