Foreword by David Rosenberg

• Author: Craig Jones
• Pages: 13-14

Foreword

Mass

torts,

and the use of the

class action

to

adjudicate them,

confront

common

and

civil

law

systems

with

some

of the

most pressing questions

of

public policy

and

institutional structure.

In

this book, Craig Jones develops

a

general theory

that

explains

and

justifies

aggregate resolution

of

claims arising

from

a

mass tort

event.

He

then applies

the

theory, showing that

a

broader

reliance

on

class

action

coheres with

the

legal norms

and

practice

of

Canada.

His

analysis, findings,

and

proposals will advance thinking

on

mass tort class actions worldwide.

The

book breaks

new

ground both

in

substance

and

methodology. Jones com-

prehensively integrates perspectives

from

tort

and

procedure, which marks

a

fruitful

departure

from

the

conventional

"proceduralist"

focus.

He

resolutely

employs

the

functional

approach: this

is the

scientific method

of

specifying

and

defending

the

social objectives that

the law

should pursue, designing models

of

rules

and

systems

to

achieve these goals,

and

testing

for the

best among compet-

ing

designs

by

evaluating their relative empirical

effects

on

relevant behavior

and

on the

interests

of

individuals

and

institutions.

If

I may

take

the

liberty

of

quick characterisation, Jones's theory posits that

the

means

of

production dictates

the

means

of

justice.

In

particular,

the

means

of

mass-producing

primary goods

—

products

and

services

—

requires

use of the

same collective means

to

provide

the

secondary goods

—

tort deterrence

and

compensation. This thesis

is not

deterministic

or

essentialist,

but

rather strictly

a

hypothesis

of

rational choice. Individuals seeking maximum well-being

in a

world

of

scarce resources

and

accident risk, logically

and as

revealed

by

over-

whelming

evidence

of

their actual choices, prefer that

the law

adjudicate mass

torts

by

collective means:

in

practical terms,

by

class action.

The

reason

is

that resolving mass tort claims

on a

disaggregated

basis

not

only

would

jeopardise

the

secondary goods

of

tort deterrence

and

compensation,

but

also

by

distorting incentives

and

costs,

would devalue

the

primary

goods

of

prod-

ucts

and

services. Production

of

both types

of

goods demands collective action

because,

in

essence,

the

whole

is

greater

than

the sum of its

parts. This point goes

well

beyond

the

joint interest

in

securing scale

economies

by

fabricating

and

marketing

products

and

services

from

standardised designs,

and the

class action

analog,

by

adjudicating mass tort claims based

on

common questions

of

liability

and

damages. Indeed,

the

major,

generally overlooked solidarity

of

interest

relates

to

raising

the

quality

of

these goods.

The

higher

and

more concentrated

the

aggregate return

for a

producer

— the

firm

providing products

and

services;

the

lawyer providing tort deterrence

and

compensation

— the

higher

and

more

concentrated

the

producer's

aggregate investment

in

better quality

as

well

as in

greater quantity.

In

Jones's model, individuals benefit

from

more

useful

and

safer

products

and

services (and given

risk

aversion,

from

more effective tort

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