Models of Closure in Mass Torts: A Comment on “The Mass Tort Bankruptcy: A Pre-History”

Abstract

This is a Comment on Troy A. McKenzie, Mass Tort Bankruptcy: A Pre-History, 5 J. Tort Law 59 (2012), which was prepared for Public Life of the Private Law: The Logic and Experience of Mass Litigation, a conference at Vanderbilt Law School in honor of the late Richard A. Nagareda.The deadly Harford Circus Fire of 1944 resulted in a pathbreaking settlement that has largely been ignored in the mass tort literature. The tragedy provides a unique window into the many changes since 1944 in the legal representation of mass tort victims and the resolution of their claims. The matter is also a noteworthy example of a pre-Bankruptcy Code resolution of a mass tort through an insolvency scheme. The Comment agrees with McKenzie's claim that the resolution of hundreds of fire-related personal injury and wrongful death claims against Ringling Brothers was successful (and innovative), but disagrees with both of the explanations he offers for that success. Contra McKenzie, the Comment argues that the smooth resolution of the claims against Ringling Brothers was due to: (1) the absence, rather than the presence, of public law elements in the proceedings; and (2) the absence of future claimants and their representatives rather than any significant aspect of the plaintiffs' lawyers' incentives.