Friday, August 28, 2009

Community Reprise

Professor Lahav's post on Community, Network, and Class Action raises an interesting point:  what do people want from litigation?  My contention isn't that people litigate in order to create a community, but that notions of community can begin to fill in participation desires that large-scale litigation (particularly non-class aggregation where individuals tend to expect their day in court) lacks.  I often return to Tamara Relis's article, "It's Not About The Money!: A Theory on Misconceptions of Plaintiffs Litigation Aims," in which she describes people's motivations in litigating medical injuries as wanting the defendant to admit responsibility, ensuring that the event would never happen again, revealing cover-ups, needing answers, and wanting to punish others.  Thus, unlike these latest cases, which focus on speech, privacy, and publicity, people in personal injury and product liability cases may want different things.  Part of what the procedural justice literature suggests that they want is process, including opportunities to be heard and to participate in the litigation.  Consequently, "Litigating Groups," is (in part) about using community as a proxy for the lack of participation in non-class aggregation.  Of course, Lahav is right: class action members may have few or no process-based expectations.  In fact, they might not even realize that they're part of a class action.  The "day in court ideal" is thus less prevalent for class members than for those involved in non-class aggregation such as the Vioxx litigation.

I'm now working on the successor to "Litigating Groups," which is currently titled "Litigating Together: Social, Moral, and Legal Obligations."  It begins with the observation that we live our lives from two perspectives:  the personal and the collective.  It is the commingling of the personal and the collective in mass litigation that makes it so complex from a group dynamic perspective.  It then suggests ways to implement the theoretical framework in Litigating Groups.   I'm also in the beginning stages of drafting a symposium piece tentatively titled "Aggregation, Community, and the Line Between," which engages the question of why we place so much emphasis on pre-existing communities in large-scale litigation and where we might end up if group cohesion is real, regardless of whether it predates or postdates the decision to sue.  

Should others have additional thoughts about this, I'd love to hear them, either in the comments or by email (eburch at


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