ABSTRACT
Torts scholars charge that mass tort litigation often produces arbitrary results; that it fails to deliver the right compensation to the right victims when it is most needed; that it misallocates risk among consumers, corporations, and governments; that it generates unconscionable waste; and that it does not achieve corrective justice. This chapter expresses that the institutional evolutionist view lies somewhere between plausible and convincing; only more and better empirical research can determine its exact location. It addresses the incremental system-building. The chapter discusses common-law process. It describes selection from among competing policy approaches. Tort litigation over occupational, environmental, and product risks burgeoned after 1969—much of it displaying features sufficiently distinctive and recurrent to constitute a discrete legal phenomenon deserving of its own moniker—the "mass tort". Common law adjudication is a distinctive lawmaking process, with powerful normative claims grounded in the common law's faithful reification of certain ideals, forms, and symbols cherished by American legal-political culture.
