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DePaul Law Review



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Collective settlement, bargaining, justice, individual causation, damages


Judgments are printed in black and white; reality comes in shades of gray. The settlement palette available to negotiating parties, unlike the adjudication palette available to judges and juries, offers a range of grays to suit the realities of uncertain liability, uncertain causation, and uncertain damages. Settlement thus offers certain advantages over adjudication. I am not referring to process advantages, such as speed, economy, privacy, and relationship preservation. Rather, I am referring to the idea that settlements may offer outcomes that more accurately comport with justice under the relevant facts and law. There is, of course, a long-running debate over whether settlement in general should be embraced or eschewed. Owen Fiss famously declared himself to be "against settlement,"' and more recently reaffirmed his view that "[t]he bargaining that normally takes place between litigants . . . has no connection to justice whatsoever." Others, meanwhile, have urged that settlement serves public and private values better than adjudication. In this Essay, I do not intend to engage that broader debate, although it will be no secret that in many cases I see significant benefits of settlement. Rather, this Essay explores a narrower question: When numerous claimants assert similar claims against a defendant, to what extent is justice particularly well served by collective settlement? Are there advantages of collective settlement that are unavailable through adjudication or through individual settlement? In particular, can collective settlement address the problem of uncertainty more satisfactorily than can adjudication or individual settlement? Part II breaks down the problem of uncertainty into categories because on closer examination, the advantages of settlement depend on the types of uncertainty involved in a particular case. Looking at product liability litigation, one can identify at least six significant areas of potential uncertainty: (1) general causation, (2) liability, (3) exposure, (4) product identification, (5) individual causation, and (6) damages. Part III considers each of these six types of uncertainty in terms of the relative advantages of individual adjudication, collective adjudication, individual settlement, and collective settlement-the four basic ways in which mass litigation may be concluded.6 While collective settlement in any case offers advantages of compromise and efficiency, the justice advantages of collective settlement are most pronounced in cases involving uncertainty regarding product identification, damages, and above all, individual causation.