FORMED BY THALIDOMIDE - MASS TORTS AS A FALSE CURE FOR TOXIC EXPOSURE

Professor Bernstein considers a theme of Judge Weinstein's judicial an d academic writings-that tort law works imperfectly to effect justice in mass disaster cases-through the vehicle of thalidomide, the paradig matic toxic substance. Thirty-five years ago, thalidomide poisoned tho usands of children, inflicting limb-reduction birth defects. Professor Bernstein argues that the drug has also had a malforming effect on ma ss tort law. Courts and scholars have used the precedent of thalidomid e to build stringent legal standards of proof and causation, without e nough attention to the functions and consistency of these standards. T halidomide has also prompted commentators to celebrate American drug r egulation and the American liability system; Professor Bernstein argue s that these paeans are exaggerated. She concludes that the United Sta tes must confront its thalidomide history, as other nations in thp wor ld have done, and build social institutions-strong regulation and soci al insurance-to guard against toxic disasters of the future.