ABSTRACT
… Over the last 40 years, an immense canon of scholarship has emerged exploring the resolution dynamics of mass torts. This canon’s light has been filtered through the prism of asbestos exposure cases, the archetype that has dominated the landscape. However, cases invoking bankruptcy preemption rarely involve asbestos exposure and present a host of novel challenges. Mass restructurings have evolved dramatically over the last ten years, but the only structures available to resolve them have not.
This Article is the first to attempt a modern reconceptualization of how mass restructurings should be resolved and delivers an unprecedented normative construct focused on addressing anticommons dynamics through statutory amendments to the bankruptcy code. These changes, coupled with an evolved perspective on fundamental structural anomalies, are designed to improve predictability, efficiency, and victim recoveries. More broadly, this Article attempts to animate scholarly debate of this new species of non-class aggregate litigation that will reshape the field.
Parikh, Samir D, Mass Tort Anticommons and the Bankruptcy Superposition (July 12, 2020).
First posted 2020-08-13 05:12:36
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