1. Where' s the Insurance in Mass Tort Litigation?
- Author
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Baker, Tom
- Subjects
- *
MASS torts , *ACTIONS & defenses (Law) , *CORPORATE governance , *DEFENDANTS , *LAWYERS - Abstract
Drawing on qualitative empirical research, this Article reports and explains the unusual role of insurance in mass tort litigation. In contrast to ordinary tort, corporate governance, and securities litigation: (1) mass tort plaintiff lawyers do not build their litigation and settlement strategy around defendants' liability insurance. except in the insolvency or near-insolvency context; (2) mass tort defendants typically retain control over their defense, even when they recover under insurance policies that assign the insurer control over their defense; (3) mass tort defendants typically use their own funds to settle claims, obtaining indemnification from their liability insurers. if any, later; and (4) many mass tort plaintiff law firms rely on non-recourse litigation funding that resembles the earliest forms of commercial insurance-bottomry and respondentia-and there is an emerging insurance market that reduces the cost of this funding and may one day supplant it. In addition to providing a new understanding of the role of insurance in mass tort litigation, this research provides empirical support for two of the conceptual insights in Kenneth Abraham's The Liability Century : (1) the mismatch between product liability and product liability insurance that emerged near the end of the twentieth century and (2) the increasingly insurance-like function of tort law. [ABSTRACT FROM AUTHOR]
- Published
- 2023