Private Law Theory

ABSTRACT
Why hasn’t full-blown mass tort litigation developed concerning harms from firearms? Gun litigation contrasts with numerous examples of litigation over widespread harms, where mass tort litigation has come to follow a rather familiar pattern of growth from initial lawsuits into aggregate litigation with leadership counsel structures and a global-resolution endgame. Some commentators predict that gun litigation is a mass-tort-in-waiting that is in its immature stage and ready to emerge, but there are reasons to be skeptical of this prediction. Gun litigation faces an obvious hurdle in the form of the 2006 Protection of Lawful Commerce in Arms Act (‘PLCAA’), but gun litigation struggled against serious obstacles even before federal statutory immunity was enacted. Looking at the nature of claims against the gun industry and seeing how those claims compare with those in mass torts involving tobacco, asbestos, opioids, talc, earplugs, pesticides, and various medical devices and pharmaceutical products, the article identifies the distinct challenges facing gun plaintiffs. And looking at recent successes by gun plaintiffs in overcoming immunity, the article identifies paths open to plaintiffs in gun litigation notwithstanding the ongoing obstacles. There are opportunities to hold the gun industry accountable through civil litigation, and recent lawsuits point the way, but the opportunities are narrower than for most mass torts. Because of the distinct challenges of tort litigation against the firearms industry, results for plaintiffs appear underwhelming when held up against other mass torts. This article aims to frame expectations realistically and to show that at least some level of accountability and change can be driven by litigation successes that fall short of full-blown mass tort litigation.

Erichson, Howard M, The Continuing Challenge of Mass Tort Litigation Against the Gun Industry (July 7, 2026), William & Mary Law Review, volume 68, no 4 (forthcoming 2026).