Tuesday, December 1, 2009
My most recent paper, Aggregation, Community, and the Line Between, is now available on SSRN. This paper continues to develop to my larger project on nonclass aggregation, which draws from moral and political philosophy as well as social psychology to contend that groups of plaintiffs in large-scale litigation may have (or could be encouraged to develop) organic or indigenous origins such that social norms and moral obligations provide an internally coercive force keeping litigants together and making external judicial coercion less necessary. Specifically, this Article expands the political philosophy behind this idea and continues the conversation that Professor Lahav and I have started here and here. I'm still in the process of revising the third article in the principal trilogy, Litigating Together: Social, Moral, and Legal Obligations (which suggests ways to implement the theoretical framework developed in Litigating Groups), but I hope to have a draft up in the next month or so.
Here's the abstract for Aggregation, Community, and the Line Between:
As class-action theorists, we sometimes focus so heavily on the class certification threshold that we neglect to reassess the line itself. The current line asks whether procedurally aggregated individuals form a sufficiently cohesive group before the decision to sue. Given this symposium’s topic—the state of aggregate litigation and the boundaries of class actions in the decade after Amchem Products, Inc. v. Windsor and Ortiz v. Fibreboard Corp.—the time is ripe to challenge our assumptions about this line in nonclass aggregation. Accordingly, this Article examines group cohesion and asks whether the current line is the only dividing line or even the correct one. If we are willing to look for genuine cohesion among individuals who are procedurally aggregated but lack sufficiently common traits before the decision to sue, then we will find an alternative, but perhaps more compelling, justification for binding collective interests.
This Article draws on the dominant justifications for group litigation—consent and interest representation—to explore this alternative line-drawing scheme in terms of political theory. Encouraging plaintiffs to form groups and reach decisions through deliberation relies on a mix of individual consent and moral obligation. Allowing plaintiffs to exercise their free will when deciding whether to associate with others preserves the liberal tenet of self-determination and escapes the anti-democratic criticism leveled at class actions. Yet, a purely liberal approach fails to capture the obligatory aspect of reciprocal promises to cooperate and the communal obligations that attach. Although plaintiffs voluntarily enter into the group, once they are group members and have tied together their collective litigation fates, they should not be permitted to exit when doing so violates their commitments. Of course, the community itself determines the content of its members’ rights and obligations to one another. Thus, this Article concludes by explaining the rationale for group autonomy in terms of pluralism and communitarianism.
I'd be very interested to hear comments that readers might have, either by e-mail or in the comments section on this blog.