The Ordinary and Extraordinary in Mass Tort Litigation

Andrew D. Bradt† & Sergio J. Campos††

† Shannon Cecil Turner Professor of Jurisprudence, University of California, Berkeley, School of Law. Email: abradt@law.berkeley.edu. Phone: (510) 664-4984.

† † Professor of Law, Boston College Law School. Email: sergio.campos@bc.edu. Phone: (617) 552-4387. The authors would like to thank Abbe Gluck, Alexi Lahav, Samir Parikh, Adam Zimmerman, and the participants at a summer workshop at Boston College Law School for their comments. Emma McMillan and Chloe Heller provided excellent research assistance. All errors are our own.

11 May 2026

Mass torts have inspired a number of innovative procedural approaches. They include creative uses of class actions, multidistrict litigation (“MDL”) and, more recently, the bankruptcy system. These procedural innovations have been challenged as a “revolution” that departs from “traditional litigation goals,” particularly our “deep-rooted tradition” of one having their “day in court.” In this Essay, we question just how “traditional” or “deep-rooted” these goals are. While mass torts do indeed raise challenging issues of due process and federalism, we show that these issues are neither new nor do they depart from a “deep-rooted tradition,” at least not one that isn’t often honored only in the breach. Instead, we suggest that history reveals an alternative “tradition,” one that we argue is much more normatively appealing, sensitive to the interests of the parties, and accommodating of practical procedural efforts to resolve nationwide and dispersed.

To read this Essay, please click here: The Ordinary and Extraordinary in Mass Tort Litigation