Lindsey Simon (Emory University School of Law) has posted Mass Tort Democracy, Florida Law Review, forthcoming 2026, on SSRN. Here is the abstract:
In recent years, an increasing number of mass tort defendants have used bankruptcy to address crushing litigation exposure. Through a plan of reorganization, well-advised debtors facing billions in potential liability can impose binding terms on all claimants that would be unavailable in any other forum. The Bankruptcy Code places important democratic checks on debtors, including a mandatory voting process and imposition of minimum creditor approval thresholds. This is especially meaningful in mass tort cases, where claimants’ desire for justice and a day in court is an uneasy juxtaposition with Chapter 11’s twin objectives of preserving value and equitably distributing assets. Bankruptcy stakeholders and the general public operate under conflicting myths about the voting process. Those suspicious of bankruptcy voting blame lawyers and claims agents for a rigged system, while supporters tout the independence and efficiency of modernized solicitation norms. As is often the case, the truth lies somewhere in between. Despite the critical role of voting in Chapter 11 cases, scholars have dedicated little attention to how democracy actually works in mass tort bankruptcy and the various ways it can (and cannot) be manipulated. This Article examines voting in mass tort bankruptcies, starting from the perspective of survivors in the Boy Scouts of America case. While the victim-centered perspective on mass tort democracy is not well developed in bankruptcy literature, it takes inspiration and guidance from a long line of legal scholarship emphasizing the importance and value of surfacing the too-often-hidden human side of legal processes. In cases riddled with voting controversy, letters to the court show just how significant a vote may be to mass tort claimants. This Article is among the first to confront common misconceptions about bankruptcy voting and set the story straight. Most importantly, it identifies ways to modify the status quo that would meaningfully improve the democratic process in mass tort cases.
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