Friday, April 20, 2012
Troy McKenzie (NYU) has posted "Toward a Bankruptcy Model for Non-Class Aggregation." I look forward to reading it. Here is the abstract:
In recent years, aggregate litigation has moved in the direction of multidistrict litigation followed by mass settlement without certification of a class action — a form commonly referred to as the “quasi-class action.” Driven by increased restrictions on class certification, the rise of the quasi-class action has been controversial. In particular, critics object that it overempowers lawyers and devalues the consent of individual claimants in the name of achieving “closure” in litigation. This Article presents two claims.
First, the debate about the proper scope and form of the quasi-class action too frequently relies on the class action as the touchstone for legitimacy in aggregate litigation. References to the class action, however, are more often misleading than helpful. The basic assumptions behind the class action are different in degree and in kind from the reality of the quasi-class action. Overreliance on the class action as the conceptual framework for aggregation carries the significant risk of unintentionally shackling courts in their attempts to coordinate litigation. The very reason the quasi-class action emerged as a procedural device — the ossification of the class action model of litigation — suggests that courts and commentators should look for another reference model when assessing what is proper or improper in quasi-class actions.
Second, bankruptcy serves as a better model for judging when to use, and how to order, non-class aggregation of mass tort litigation. The entirety of bankruptcy practice need not be imported to realize that bankruptcy may provide a useful lens for viewing aggregation more generally. That lens helps to clarify some of the most troubling concerns about the quasi-class action, such as the proper role of lawyers and the place of claimant consent. Bankruptcy serves as a superior reference model because it starts with an assumption that collective resolution is necessary but tempers the collective with individual and subgroup consent as well as with institutional structures to counterbalance excessive power by lawyers or particular claimants.