An Experiment in Law Reform: Amchem Products v. Windsor

The Supreme Court’s 1997 decision in Amchem Products, Inc. v. Windsor struck down the most ambitious settlement class action ever attempted. The settlement was, however, the logical outgrowth of the federal judiciary’s efforts in the early 1990s to resolve a “disaster” of “critical proportions.” Many factors, not least the Supreme Court’s decision in Amchem, turned the tide against this trend. Ironically, however, the post-Amchem world has come to look a lot like Amchem. The settlement’s central feature-deferral of unimpaired claims to assure the availability of resources to compensate the sick-was subsequently incorporated (either by statute or through judicial decision) into the law of most states with heavy asbestos caseloads. Similarly, the bankruptcy of nearly all of the defendants whose cases would have been settled created a series of administrative claims-processing regimes similar to the Amchem settlement. This Article suggests that the Amchem settlement should be understood as a triumph of judicial statesmanship, and the reaction that took place in the late 1990s had tragic consequences. It also surveys what lessons we might learn from the Amchem experiment as we think about facilitating resolution of other mass torts in the future.