Collective judicial management of mass toxic tort controversies: Lessons and issues from the agent orange litigation

Viewing the Agent Orange litigation as a case study, this article explores the feasibility and desirability of strengthening the powers of the courts to manage toxic tort controversies en masse. The Agent Orange lawsuit, brought on behalf of potentially millions of Vietnam War veterans and family members, charged that herbicides used for military purposes during the war caused a wide range of health problems. This article first reviews the current national debate over how mass toxic tort controversies should be handled, including key legislative reform options, and describes how attention is increasingly focused on ways that the court system might better cope with mass toxic torts. The principal events of the Agent Orange litigation are then summarized, by which the litigation was consolidated into a massive class action, the class action was settled, and a streamlined plan for distributing the settlement fund was adopted. The article evaluates the outcome of the litigation, and discusses whether the solution there can and should be broadly applied to other mass toxic tort cases. This question depends, in part, on a series of complex legal and practical issues, but the author suggests that the question will also depend on what institutional role we expect the judiciary to play within society.