You Can’t Buy That: Justice Beyond Compensation in Mass-Tort Bankruptcy

As corporate defendants charged with unspeakable harms increasingly find their way to the bankruptcy courts, bankruptcy scholars and practitioners are debating the merits and misgivings of the mass-tort bankruptcy. This Note contributes to this conversation a crucial advantage of mass-tort bankruptcies: the ability to give tort creditors more meaningful resolution of their injuries through nonmonetary remedies. Bankruptcy proceedings, as contrasted with traditional tort litigation, provide a legal and practical forum for securing justice beyond mere compensation, tailored to the unique needs and preferences of victims. Early examples of nonmonetary provisions in Chapter 11 reorganization plans—including those of Catholic dioceses involved with child sex-abuse allegations, USA Gymnastics, the Boy Scouts of America, and Purdue Pharma—suggest a role for courts and litigants in pursuing nonmonetary remedies, as well as a role for legislators in empowering tort creditors to obtain meaningful relief, monetary and nonmonetary. Although bankruptcy may not be the preferred venue for tort creditors, advocates should be mindful of the bankruptcy court as a court in equity, poised to render solutions through nontraditional means as justice requires.