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Comment on Peterson and Selvin, 54 Law and Contemporary Problems 249 (1991)


Mark Peterson's and Molly Selvin's interesting article, Mass Justice: The
Limited and Unlimited Power of Courts, I deals with the role of courts as
participants in the resolution of mass tort cases. Peterson and Selvin claim, in
particular, that courts have interests in aggregating litigation, in part because
judges wish to reduce the boredom and the imposition on their calendars that
they would face if forced to adjudicate individually large numbers of similar
claims such as those involving asbestos and Bendectin. "Faced with mass tort
litigation," they write, "judges are not simply neutral arbiters; rather, they
have strong personal incentives to speed the judicial process, save costs and
labor, and reduce redundancy." 2 There is an obvious logic to their analysis,
and the topic they have chosen is important and well deserving of their
attention. Here, I wish merely to note a few reservations about this article
with which I, on the whole, largely agree. My reservations stem from my
suspicion that the issue of judicial interest in aggregation is a bit more
complicated than Peterson and Selvin let on.

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