February 17, 2010
Burch on Group Consensus, Individual Consent
Elizabeth Chamblee Burch (FSU/Mass Tort Profs) has posted to SSRN Group Consensus, Individual Consent. The abstract provides:
Despite a rise in the number of personal-injury and product-liability cases consolidated through multi-district litigation, a decline in class-certification motions, and several newsworthy nonclass settlements such as the $4.85 billion Vioxx settlement and estimated $700 million Zyprexa settlements, little ink has been spilled on nonclass aggregation’s unique issues. Sections 3.17 and 3.18 of the American Law Institute’s Principles of the Law of Aggregate Litigation are a noteworthy exception. This Article uses those principles as a lens for exploring thematic questions about the value of pluralism, group cohesion, governance, procedural justice, and legitimacy in nonclass aggregation.
These sections make some scholars nervous because they substitute individual consent to a settlement for individual consent to a process. But the process itself plays a vital function; it isn’t simply a handy crutch for enforcing substantive law. When process is coercive or consent is tainted those flaws undermine systemic legitimacy and can affect subsequent compliance with the outcome. To be sure, process should enable the enforcement of substantive laws. But it can do so much more. It can serve as means for bringing plaintiffs together, plugging their stories into a larger narrative, making sense of that narrative as part of a community, deliberating about the role that litigation should play, and encouraging plaintiffs to reason together about the right thing to do.
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