Chapter 5: Courts as Policymakers: The Uneven Justice of Asbestos Mass Tort Litigation

In “Chapter 5: Courts as Policymakers: The Uneven Justice of Asbestos Mass Tort Litigation,” Sandra Nichols Thiam, Carol Adaire Jones, Cynthia R. Harris, and Samuel F. Koenig of the Environmental Law Institute, track the story of the U.S. legal system’s struggle to compensate victims of asbestos exposure and offer lessons that can be gleaned from the experience for future efforts to resolve major health and environmental challenges. 

Asbestos, known as the magic mineral in ancient times, withstands fire, corrosion, and acid, and its malleability makes it possible to incorporate it in a wide variety of products. With the goal of improving product safety, it has been used to fireproof and insulate buildings, vehicles and ships, water pipes, paper, garden products, protective clothing, and even children’s toys. But the safety benefits have come with harmful effects.  

There has been long-term, widespread exposure to asbestos for over 100 years. Hundreds of thousands of people have been disabled and died—a legacy that continues to grow today. Neither the workers’ compensation system nor the tort system has been able to meet the challenge of compensating the victims of the asbestos crisis fairly and efficiently. And Congress has not stepped in to provide a legislative solution.

The chapter identifies successes and failures in the strategies for compensation and considers what the asbestos story shows us about the role of the courts when other branches of government do not respond to a public crisis.

About the Authors

Sandra Nichols Thiam is Associate Vice President for Research & Policy at the Environmental Law Institute. She graduated with a BA in earth and environmental sciences from Wesleyan University and has a JD from the University of Virginia.

Carol Adaire Jones is a Visiting Scholar at the Environmental Law Institute. Before joining the Environmental Law Institute, she had a 30-year career as an environmental economist in both government and academia. She received her BA from the University of Pennsylvania, her MSc. from the London School of Economics, and her Ph.D. in economics from Harvard University.

Cynthia R. Harris is a Staff Attorney at the Environmental Law Institute. She graduated cum laude with a BA in Communication from the University of California, San Diego and holds a JD from the New York University School of Law, where she served on the New York University Law Review.

Samuel F. Koenig is a Research Associate at the Environmental Law Institute. He graduated with a BA in Environmental and Urban Studies from the University of Chicago.