Saturday, March 14, 2009

Burch on Litigating Groups

I've just posted a draft of my article, "Litigating Groups," on SSRN. It is the beginning of a new approach to nonclass aggregation, one that is based principally on group cooperation and social norms. Although it's principally a theoretical piece, its goal is to reallocate the litigating power to the claimants rather than the attorneys. Accordingly, unlike most scholarship on the topic, it does not concede that the plaintiffs' attorney rightly acts as the fulcrum in aggregate litigation such as Vioxx. Instead, it proposes that increased group cohesion can both restore the tether between attorneys and their clients and reallocate control to claimants. The article's core contention is that groups of plaintiffs may have (or could be made to have) organic or indigenous origins such that social norms and moral obligations provide an internally coercive force keeping litigants together and preventing them from holding out when doing so might harm the group as a whole.

Here's the abstract:

Large-scale litigation, such as the Vioxx, Zyprexa, and asbestos cases, breeds conflict. Conflicts arise between attorneys and their clients (agency problems), plaintiffs and other plaintiffs (group problems), and plaintiffs' attorneys and other plaintiffs' attorneys (competition problems). Although these cases cannot be certified as class actions, they still proceed en masse to achieve economies of scale and present a credible threat to defendants. Assuming that coordinating and consolidating large-scale litigation is systemically desirable, this Article explores a new approach to removing the group and agency problems that increase aggregate litigation's costs and undermine its normative goals such as fairness, compensation, and deterrence.

Unlike traditional scholarship that emphasizes individual autonomy or welfare maximization, this Article borrows from the literature of moral and political philosophy as well as social psychology to analyze group dynamics within nonclass aggregation. It requires us to view plaintiffs within large-scale litigation as a community of sorts and to recognize that sometimes litigants incur obligations simply by virtue of being a group member, whether chosen or not and whether welfare maximizing or not. Moreover, empirical studies demonstrate that once people consider themselves part of a group, they exhibit other-regarding preferences-trust, reciprocity, and altruism-toward other members. Cohesive group members are more likely to cooperate with one another and care about the collective outcome, and less likely to exit the group when doing so benefits the individual rather than the group. In the face of hard cases, of instability and disunity, plaintiffs who have made promises and assurances to one another can invoke social norms of promise-keeping, social agglomeration, compatibility, and the desire for means-end coherence to achieve consensus, mitigate client-client conflicts, and restore the tether between clients and their attorney. Thus, using groups to overcome the problems in nonclass aggregation not only makes sense from a group responsibility perspective, it may also harmonize with wealth maximization and individual autonomy goals.

I would, of course, welcome comments ( Because of the law review word limit constraints, this piece only touches on implementation methods that will be fleshed out more fully in the next article.

I also thank the members of the Merck Settlement Group for their willingness to share their insights on both their group and the Vioxx settlement with me.


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