Toward Greater Judicial Leadership in Asbestos Litigation

This speech was delivered to the Alabama Lawyers Chapter of The Federalist Society, and as part of The Federalist Society's National Lawyers Convention in 2002. It is always a privilege and an honor to appear before the Federalist Society. Justice Clarence Thomas once said that the debates of this Society spark “a dialogue between lawyers and judges, and even at times amongst judges themselves.”1 It is therefore fitting that the remarks that follow are directed to our Nation's state and federal judges.

There is a need—as never before—for judges to reflect, talk and lead in cleaning up the problem of asbestos litigation, the biggest single tort crisis in American history. I spotlight the role of the courts because the Congress has refused to act. Several years ago, the United States Supreme Court lamented that “[t]he elephantine mass of asbestos cases . . . defies customary judicial administration and calls for national legislation.”2 Usually, when the Supreme Court speaks, Washington, D.C. listens. Three times, however, the nation's highest court has urgently pleaded for Congress to stem the flood of asbestos cases-each time, to no avail.3

Under our current, flawed system, healthy people are allowed to snatch compensation that rightfully belongs to the sick. America’s stockholders and employees are threatened by bankrupting verdicts. America’s leading corporations are treated as piñatas by irresponsible juries in a handful of notorious venues. And America’s courts are buried under an avalanche of asbestos litigation.

While Congress refuses to act, however, some judges are assuming leadership and a growing number of their colleagues are heeding the call. For the sake of a still fragile national economic recovery, for the sake of injured plaintiffs and innocent defendants, the time has come for judges to take the lead.

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