Richard Nagareda
Professor of Law; Tarkington Chair in Teaching Excellence
Director, Cecil D. Branstetter Litigation & Dispute Resolution Program
Read an essay, "The Public and Private Faces of Peace for Mass Torts," by Richard Nagareda
For the past two decades, the law has struggled with the problem of mass torts. In his 2007 book, Mass Torts in a World of Settlement, Professor Richard Nagareda, who directs Vanderbilt’s Cecil D. Branstetter Litigation & Dispute Resolution Program, argues that "the important questions about mass torts are not so much questions about litigation in the sense of courtroom trials but questions about the design and implementation of settlements,” he explains. “The big open question in the law of mass torts today is how to design arrangements to replace litigation over a given product with private compensation systems that pay claims, essentially by putting into place a kind of miniaturized, privatized version of workers’ compensation.”
For Professor Nagareda, it is both empowering and problematic that “the principal designers of these private compensation systems have not been legislatures or even courts but, instead, sophisticated private lawyers – entrepreneurial personal injury lawyers and their counterparts who defend corporate manufacturers.”Unlike for some other areas of law,” he explains, “the legal landscape governing mass torts is less the product of the latest oracular pronouncement from the Supreme Court and much more the product of what real practicing lawyers in the real world are doing. The story of mass torts today is the story of how these lawyers have come to function as a rival regime of legal reform, one that wields the power to replace the legal rights of affected persons with a new set of rights spelled out in some manner of settlement agreement. Settlements, not litigation, are the end-game to which mass tort litigation is directed.”
To address this development, Professor Nagareda proposes a novel approach: Treating mass tort litigation as a problem of governance by “designing the legal rules and institutions for peacemaking in a way that both empowers and constrains the peace designers, much as our law empowers and constrains the law reform functions of the modern administrative state.”
Professor Nagareda, who teaches courses on evidence and complex litigation, was named director of the law school’s recently endowed Cecil D. Branstetter Litigation & Dispute Resolution Program in 2005. The program’s endowment resulted from a settlement of a class action lawsuit concerning alleged price fixing in violation of state antitrust laws. Because the members of the plaintiff class were too numerous and difficult to identify to make distribution of the settlement funds possible, the court approved a $2.9 million distribution to Vanderbilt Law School to support the study of litigation and dispute resolution as a cy pres (or “next best”) use of the settlement dollars to benefit the plaintiff class.
