Abstract
Hundreds of thousands of people who’ve been exposed to asbestos and opioids have had their claims funneled into trusts through mass-tort bankruptcy cases. At their start, both the asbestos and opioid epidemics were limited to occupations and geographic locations that primarily affected lower-class white men. Today, however, women and people of color are also harmed. Like the claimants of earlier generations, their claims are funneled into bankruptcy trusts. Women and people of color have unequal access to treatment and have higher mortality rates from their opioid and asbestos exposure, making them more likely to have larger dollar value claims in bankruptcy. While those earlier claims are likely to be paid from trust assets first and in full, these new claimants are paid second and in smaller amounts. This Article identifies a structural inequality in the mass-tort bankruptcy system that unfairly determines who among these victims gets made whole and who doesn’t. Although bankruptcy plans cannot discriminate between old and new victims, as this Article details, failures within the mass-tort bankruptcy system disadvantage new victims who may be cut out of the claims process or, by the time they come to the trust for payment on their claims, receive less compensation for their more serious harms. Moreover, regardless of their individual harm, the bankruptcy system assigns the same value to tort victims for voting purposes. This results in a system where tort victims with weaker claims can have outsized leverage over trust valuation than those who are most harmed. This Article proposes several ways that the bankruptcy system can improve the trust process to ensure equitable payments for victims by correcting for what are now discriminatory bankruptcy trusts.
Recommended Citation
Nicole Langston,
Discriminatory Bankruptcy Trusts,
79 Vanderbilt Law Review
(2026)
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol79/iss4/3