미국의 집단피해 불법행위(Mass Tort)소송에 관한 고찰

‘Mass torts’ are conscious aggregations of plaintiffs and/or lawsuits involving the same substance, product, event or injury. They are material, physical events that occur in a legal setting, which are geographically and temporally dispersed and which are generally addressed as a collection of similar incidents. The current state of mass tort litigation may well provide greater leverage for mass tort plaintiffs than those with completely independent claims. Thus, I conclude, it is not at all clear that the future of mass torts is ‘bleak’. When thinking about the future of mass torts, we might begin by asking what is unlikely to disappear. With a sense of the unchanging, we can better focus on real change and its opportunities and risks. I propose that the following things are unlikely to disappear in the foreseeable future: (1) mass production, mass marketing, mass transportation, and other conditions that similarly situate large numbers of people; (2) mass harms that occasionally result from wrongful conduct; (3) legal obligations that flow from a sense that justice sometimes requires transferring wealth from perpetrators of such wrongful conduct to their victims; (4) a market for lawyers representing victims of such mass harms; and (5) a shared interest by plaintiffs and defendants in resolving claims by settlement rather than adjudication. The argument in favor of mandatory class actions relies entirely on the prospect that such actions would increase defendants' liability and thereby create a stronger disincentive to harmful conduct, but the settlement dynamics of class actions make this a questionable prospect outside of the context of small-claims class actions.