Vanderbilt Law Review

First Page



Following the September 11, 2001 terrorist attacks, more than ten thousand rescue and cleanup workers brought individual lawsuits against New York City for respiratory and other illnesses they developed after working in the ruins of the World Trade Center. After years of litigation, the parties put together a comprehensive settlement in 2010. The defendant agreed to pay a total of $625 million so long as 95% of the plaintiffs accepted the terms of the settlement. If 100% of the plaintiffs signed on, however, the defendant was willing to increase the total settlement amount to be shared among all the plaintiffs to $712.5 million.' In other words, to get the last 5% of plaintiffs to sign on, the defendant was willing to pay a substantial premium-more than twice the per-claimant amount for the first 95%. But, because the plaintiffs could get only 95.1% of their ranks to participate by the deadline, they left up to $87.5 million on the table.

Why did the plaintiffs fail to maximize the collective value of their claims? Looking to property theory, I argue, can help us understand. As this Article will explain, there is an "anticommons" problem in aggregate litigation.