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John C.P. Goldberg, Comments, Misconduct, Misfortune, and Just Compensation: Weinstein on Torts, 97 Colum. L. Rev. 2034 (1997).

Abstract: In this Comment on Professor Minow's article, Professor Goldberg explores Judge Weinstein's understanding of the relationship between justice and compensation in mass tort litigation. Professor Goldberg questions whether Judge Weinstein accepts the traditional notion that justice requires full restoration of an injured plaintiff to the status quo ante. Instead, in mass tort cases, where either there is no wrongdoer or the extent of injury to the plaintiff is disproportionate to the degree of wrongdoing by the defendant, Judge Weinstein may believe that compensation is more properly measured by the plaintiff's needs. This belief may explain why damage awards approved by Judge Weinstein have sometimes fallen substantially below the full compensation demanded by the traditional doctrine. While a need-based approach to compensation departs from tort law orthodoxy, Professor Goldberg shows that Judge Weinstein's approach finds support in the works of tort theorist Fleming James. James likened mass torts to natural disasters. Whereas the orthodox tort model presupposes an individual wrongdoer who directly caused the plaintiff's losses, responsibility in modern mass torts may be so widespread and diffuse as to be attributable to no one in particular. In such cases, where liability may not track fault, Weinstein and James question the need, and even the justice, of requiring the defendant to make the plaintiff whole. Professor Goldberg demonstrates how Weinstein, like James, shows a preference in mass tort cases for distributive, rather than corrective, justice. He thus answers the charges of critics who would see mass tort settlements approved by Judge Weinstein as a denial of justice, while assuring admirers that, in the area of compensation too, Judge Weinstein's ultimate concern is that justice is done.