Formed by Thalidomide: Mass Torts as a False Cure for Toxic Exposure

Abstract

Professor Bernstein considers a theme of Judge Weinstein's judicial and academic writings--that tort law works imperfectly to effect justice in mass disaster cases--through the vehicle of thalidomide, the paradigmatic toxic substance. Thirty-five years ago, thalidomide poisoned thousands of children, inflicting limb-reduction birth defects. Professor Bernstein argues that the drug has also had a malforming effect on mass tort law. Courts and scholars have used the precedent of thalidomide to build stringent legal standards of proof and causation, without enough attention to the functions and consistency of these standards. Thalidomide has also prompted commentators to celebrate American drug regulation and the American liability system; Professor Bernstein argues that these paeans are exaggerated. She concludes that the United States must confront its thalidomide history, as other nations in the world have done, and build social institutions--strong regulation and social insurance--to guard against toxic disasters of the future.

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