Future Claims in Mass Tort Cases: Deterrence, Compensation and Necessity

Abstract

Future claimants have been, until recently, the neglected stepchildren of mass tort litigation. Without actual claims themselves, and often without separate representation, they have had their claims systematically devalued and exploited by other parties more prominently represented before the court and in settlement negotiations. Academic commentary, and now judicial decisions, have protected future claimants from the excesses of what might justifiably be condemned as "litigation without representation." But in restoring to future claimants the procedural rights to which they are otherwise entitled, the current trend in protecting their interests may well leave them worse off - and the rest of us as well. A fastidious concern with the rights of future claimants might leave most of them worse off than under a system of less precise but more effective remedies. This essay seeks to document this point from three different perspectives: the deterrence perspective implicit in regulating the underlying conduct that gives rise to claims; the compensatory perspective assumed by advocates of the rights of future claimants; and the perspective of necessity that justifies mandatory class actions under existing law.