EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, January 22, 2010

The AALS Poster Project: Elizabeth Chamblee Burch's Litigating Together: Social, Moral, and Legal Obligations

Elizabeth Chamblee Burch presented the poster, Litigating Together: Social, Moral, and Legal Obligations (Download Litigating_Together):


Professor Burch is a professor at the Florida State University College of Law, where she has taught since 2008. She teaches Civil Procedure, Evidence, and Complex Litigation. Before coming to Florida State, she taught at the Cumberland School of Law, where she received the Harvey S. Jackson Excellence in Teaching Award and the Lightfoot, Franklin & White Faculty Scholarship Award.

Her articles include Reassessing Damages in Securities Fraud Class Actions, 66 MARYLAND LAW REVIEW 348 (2007), Securities Class Actions as Pragmatic Ex Post Regulation, 43 GEORGIA LAW REVIEW 63 (2008), and Litigating Groups, 61 ALABAMA LAW REVIEW 1 (2009).

According to Professor Burch:

The poster presents an article that I'm working on with the same title.  I haven't yet posted the article on SSRN, but here's the working abstract:

Current scholarship on mass-tort litigation tends to focus on either securing individual justice and autonomy for litigants or using large-scale litigation to maximize social welfare.  The social-welfare approach has captured the minds of Congress members, the Federal Rules advisory committee, and judges alike.  In part, it has led to the creation of a central-planning model, which aggregates as many nominally related plaintiffs as possible into one forum, before one judge.  In the wake of Amchem, Ortiz, and the Class Action Fairness Act, these claims frequently proceed en masse, as "nonclass aggregation," but lack both the judicial protections of a certified class action and the client monitoring protections of individual actions.  The result is that few safeguards exist to protect plaintiffs from standard collective-action problems, such as agency problems, free riders, and holdouts.  These circumstances threaten procedural legitimacy and necessitate change.  This Article thus offers an alternative vision for the role of federal courts in large-scale litigation: to enable plaintiffs to litigate together by communicating and associating with one another.

Specifically, the Article argues for a procedural system that maintains fidelity to the tort system's philosophy of individually held rights while recognizing the obligatory constraints that regularly arise in collective litigation.  These obligations flow from voluntary promises and assurances, the complex psychological and social dynamics of groups, and the transformative nature of social relationships-if not in a metaphysical sense, in a pragmatic, obligation sense.  Encouraging plaintiffs to discuss and specify their litigation ends together allows them to associate with others who share their claims, injuries, and goals, which ultimately increases cooperation.  Once plaintiffs sort into more cohesive groups and commit to band together, they might reinforce those commitments through social norms and social sanctioning or contractually enforceable governance agreements that embrace the ideals of a deliberative democracy-arguing, bargaining, and voting.  Finally, if plaintiffs opt to remain autonomous and abstain from partaking in the benefits and burdens of group membership, then the system should honor that choice.  As outliers, these plaintiffs may serve an important error-correction function, much as bona fide objectors do in class-action settlements.  

In this way, litigating together preserves the fundamental tenet of self-determination in liberal theory, but recognizes that this power now rests with the collective in a way that furthers the group's communal interests.  Moreover, by returning voice and control to plaintiffs, this alternative vision reinstates core procedural justice components-voice and participation opportunities, adversarial process, and error-correction mechanisms.  It also challenges the assumption that plaintiffs' attorneys can act as unconstrained entrepreneurs over whom plaintiffs exercise little control. 



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