Torts Plenary - Principles for Compensation Programs and Mass Settlements: Public and Private

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The assumption behind this session is that disasters will sometimes end up either being handled under a public compensation scheme (9/11, Price Anderson) or a private regime of mass deal-making (Vioxx, BP).  Should anything be decided ex ante or will every plan/settlement be sui generis?  A governing assumption seems to be that a program will operate in the shadow of tort law, so that the kind of loss and the scale of loss will have some sort of genetic connection to the tort suits that “could have been brought.”  But this may be a mere fig leaf for a very different kind of ordering—one based, for example on parallel principles of distributive justice or maybe even independent social needs, such as national and economic security.