causation, Cause in Fact, product liability, mass torts, mass product torts, corrective justice, instrumental, market share liability, Recoupment, public nuisance, alternative liability
This article uses the example of mass products torts to test the traditional principle that requires a specific victim to prove that a particular injurer caused her harm in order to establish tort liability. Proponents of the instrumentalist conception of torts, notably those identified with law and economics such as Calabresi and Posner, view any requirement of individualized causation as “old-fashioned” and inconsistent with their goals of achieving loss minimization and loss distribution or wealth maximization. In contrast, corrective justice theorists, such as Ernest Weinrib, argue that particularized causation is intrinsic to the entire notion of tort liability. The judicial handling of mass products torts during the past quarter-century thus provides an arena in which to evaluate the judicial response to the instrumentalist and corrective justice theories. This article analyzes the attempts of victims of mass torts since the 1980s to circumvent the traditional requirement of individual causation by filing actions on behalf of “collective plaintiffs,”such as class actions, seeking to impose liability on defendant-manufacturers through a variety of legal theories including market share liability, even when the identity of the actual injurer cannot be determined. Despite the influence of instrumentalist theories elsewhere in tort law during the 1980s, the individual causation requirement championed by corrective justice theorists appeared to have prevailed by the end of the decade. Beginning in the late 1990s, however, states and municipalities began filing “recoupment” actions against manufacturers of tobacco-products, handguns, and lead-pigment, attempting to use fraud-based torts and novel interpretations of torts such as public nuisance to hold manufacturers collectively liable without proof of individualized causation. While it is too early to tell whether these recoupment actions will succeed where earlier attempts have failed, the resilience of the individual causation requirement is remarkable given the pervasive influence of the instrumentalist theory elsewhere in products liability law. The article concludes that the judicial reluctance to collectivize liability results more from concerns about appropriate institutional boundaries than it does any judicial acceptance of corrective justice principles.
62 Washington and Leww Law Review 873(2005).