For the past decade or so, important aspects of American tort law have sought to reaffirm tort's ostensible commitment to individualized justice. In the courts, "the elephantine mass of asbestos cases"' has produced a reaffirmation of what Justice Souter in Ortiz v. Fibreboard Corporation called the "day-in-court ideal": "our deep- rooted historic tradition that everyone should have his own day in court." The academy, in turn, appears to be in the midst of a sustained revival of the closely related idea that tort law consists in the reciprocal relationship between plaintiff and defendant, in which the bipolarity of the dispute forms the heart of the tort system's aspiration for corrective justice. "Tort law's structural core," writes Jules Coleman, for example, "is represented by case-by-case adjudication in which particular victims seek redress" from particular defendants, each of whom "must make good her 'own' victim's compensable losses."
Underlying these resurgent aspirations to individuation in the law of torts is, among other things, a common set of assumptions about the character of our "historic tradition," as Justice Souter noted in Ortiz. At conference after conference, in article after article, that tradition is said to be grounded in a purportedly long- standing American commitment to individualized justice. To be sure, sophisticated observers of the legal system understand that the overwhelming majority of cases settle long before an adjudication ever takes place. Yet the literature on tort settlements -inspired by Mnookin and Kornhauser's seminal article in the field of domestic relations adopts an individualized approach to thinking about bargaining in the shadow of the law. Settlement theorists have shown the deep significance of repeat-play agents in non-zero-sum fields like commercial litigation and negotiations among commercial comments on earlier drafts. Chris Brummer, Camden Hutchison, and Megan Renfrew provided excellent research assistance.
Samuel Issacharoff and John F. Witt,
The Inevitability of Aggregate Settlement: An Institutional Account of American Tort Law,
57 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol57/iss5/3