The difficulty of resolving mass tort cases has frustrated claimants, defendants, courts, and counsel alike. Defendants demand closure, but class certification has proved elusive, and nonclass settlements require individual consent. Lawyers and scholars have been drawn to strategies that solve the problem of mass tort cases by empowering plaintiffs’ counsel to negotiate package deals that effectively sidestep individual consent. In the massive Vioxx settlement, the parties achieved closure by including terms that made it unrealistic for any claimant to decline. The American Law Institute’s Principles of the Law of Aggregate Litigation offers another solution: it proposes to permit clients to consent in advance to be bound by a settlement with a supermajority vote. This Article argues that, despite their appeal, both of these strategies are deficient. Lawyer-empowerment strategies like these render settlements illegitimate when they rely on inauthentic consent or place lawyers in the untenable position of allocating funds among bound clients. Consent, not closure, is the touchstone of legitimacy in mass tort settlements.
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