Litigating together: Social, moral, and legal obligations

Boston University Law Review

Volumn 91, Issue 1, 2011, Pages 87-157

  Burch, Elizabeth Chamblee ^a  

^a University Collage of Law   (United States)

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EID: 79952835328     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (409)

1. Vioxx Settlement Agreement, § 1.2.8.1-2 (Nov. 9, 2007) (initial settlement agreement, Vioxx Prod. Liab. Litig., No. 05-01657 (E.D. La.)), available at http://www.officialvioxx settlement.com. After some plaintiffs' attorneys contended the settlement conflicted with ethical rules, it was reinterpreted to mean that the attorneys should recommend the deal only if it was in the client's best interest. Cf. Alex Berenson, Lawyers Seek to Alter Settlement Over Vioxx, N.Y. TIMES, Dec. 21, 2007, at C4 (discussing-how the agreement prevented attorneys from offering the best independent judgment for each client).
2. 311 U.S. 32 (1940).
3. Id. at 40-44. Epstein v. MCA, Inc., has, however, limited the availability of collateral attack in the class action context. 179 F.3d 641, 648 (9th Cir. 1999).
4. see also Samuel Issacharoff & Richard A. Nagareda, Class Settlements Under Attack, 156 U. PA. L. REV. 1649,1685-91 (2008) ("Evaluating interclass conflicts from the time of the class settlement, by contrast [to collateral attacks that take place afterwards], brings the adequacy analysis into line with the uncertainty that underlies all manner of settlement").
5. See J.B. Ruhl, Law's Complexity: A Primer, 24 GA. ST. L. REV. 885, 889 (2008) ("Most actors in the legal system interact in this ⋯ context in which there are too many interacting agents to fit neatly into bilateral models").
6. see also JOHN H. MILLER & Scorr E. PAGE, COMPLEX ADAPTIVE SYSTEMS: AN INTRODUCTION TO COMPUTATIONAL MODELS OF SOCIAL LIFE 221(2007).
7. The first article in the trilogy is Elizabeth Chamblee Burch, Procedural Justice in Nonclass Aggregation, 44 WAKE FOREST L. REV. 1 (2009) [hereinafter Procedural Justice], which explains in depth the problems and risks presented by nonclass aggregation. It observes that systemic legitimacy and compliance with judicial decisions hinges on ensuring procedural justice, but that our current system for handling large-scale litigation fails to provide a number of key procedural justice components including the preference for adversarial litigation, participation opportunities, impartiality, and error correction. These institutional shortcomings are due in large part to the trade-offs inherent in large-scale litigation. Those trade-offs include that: [L]itigation is no longer adversarial despite litigants' preferences, but effective individual litigation is too costly to pursue; aggregate settlements provide few participation opportunities for participation and no avenues for appeal or error correction despite potential conflicts, but without aggregate settlements, cost and delay could be staggering and the relief may come too late; mediators or special masters might afford claimants additional participatory opportunities, but process is then less adversarial and may suffer from legitimacy problems.
8. Id. at 46. The second article in the trilogy is Elizabeth Chamblee Burch, Litigating Groups, 61 ALA. L. REV. 1 (2009) [hereinafter Litigating Groups]. A summary of the principal claims in the second Article is laid out in the text of this Article. I have also summarized those contentions in a short response to Judge Weinstein's article, Jack B. Weinstein, Preliminary Reflections on Administration of Complex Litigations, 2009 CARDOZO L. REV. DENOVO 1, 3, http://www.cardozolawreview.com/content/denovoAVEINSTEIN-2009-1. pdf.
9. See Elizabeth Chamblee Burch, A New Way Forward: A Response to Judge Weinstein, 2009 CARDOZO L. REV. DE NOVO 168.
10. See, e.g., John C. Coffee, Jr., Class Action Accountability: Reconciling Exit, Voice, and Loyalty in Representative Litigation, 100 COLUM. L. REV. 370,380 (2000).
11. Howard Erichson has long discussed the problems inherent in nonclass aggregation. See, e.g., Howard M. Erichson, Beyond the Class Action: Lawyer Loyalty and Client A utonomy in Non-Class Collective Representation, 2003 U. CHI. LEGAL F. 519, 526.
12. See, e.g., Samuel Issacharoff, Class Action Conflicts, 30 U.C. DAVIS L. REV. 805, 809 (1997) [hereinafter Issacharoff, Class Action Conflicts].
13. Samuel Issacharoff, Governance and Legitimacy in the Law of Class Actions, 1999 SUP. CT. REV. 337,337 (1999).
14. See, e.g., RICHARD A. NAGAREDA, MASS TORTS IN A WORLD OF SETTLEMENT 269 (2007).
15. See, e.g., MARTIN H. REDISH, WHOLESALE JUSTICE: CONSTITUTIONAL DEMOCRACY AND THE PROBLEM OF THE CLASS ACTION LAWSUIT 20 (2009).
16. See, e.g., David Rosenberg, Mandatory-Litigation Class Action: The Only Option for Mass Tort Cases, 115 HARV. L. REV. 831,833-34 (2002).
17. I explore this potential harmony in this Article's Conclusion.
18. Litigating Groups, supra note 5, at 20; see also Elizabeth Chamblee Burch, Group Consensus, Individual Consent, 79 GEO. WASH. L. REV. 101 (forthcoming February 2011), available at http://ssrn.com/abstract=1552462 [hereinafter Group Consensus, Individual Consent].
19. Elinor Ostrom, Collective Action and the Evolution of Social Norms, 14 J. ECON. PERSP. 137, 140 (2000) ("Those who believe others will cooperate in social dilemmas as more likely to cooperate themselves.").
20. Lynn A. Stout, Social Norms and Other-Regarding Preferences, in NORMS AND THE LAW 13,22-23 (John N. Drobak, ed. 2006).
21. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 597 (1997) (finding that attempted settlement of current and future asbestos-related claims does not satisfy Rule 23's class certification requirements).
22. Ortiz v. Fibreboard Corp., 527 U.S. 815, 864 (1999) ("[T]he applicability of Rule 23(b)(1)(B) to a fund and plan purporting to liquidate actual and potential tort claims is subject to question ⋯.").
23. Class Action Fairness Act of 2005, Pub. L. No. 109-2, 119 Stat. 4 (codified in scattered sections of 28 U.S.C.).
24. Thomas E. Willging & Emery G. Lee III, From Class Actions to Multidistrict Consolidations: Aggregate Mass Tort Litigation After Ortiz, 58 U. KAN. L. REV. 775, 776 (2010).
25. For an overview of how these provisions exert ethical pressure on plaintiffs' counsel, see Howard M. Erichson, The Trouble with All-or-Nothing Settlements, 58 U. KAN. L. REV. 979,982-1006(2010).
26. Plaintiffs might retain attorneys because of the attorneys' advertised expertise; a group of plaintiffs might seek collective representation (an "aggregate lawsuit"); plaintiffs' law firms may work together informally on similar cases (a "private aggregation"); or court-mandated multi-district transfer and consolidation might bring plaintiffs and their attorneys together ("administrative aggregation"). PRINCIPLES OF THE LAW OF AGGREGATE LITIG. § 1.02 (proposed final draft April 1,2009).
27. See FED. R. CIV. P. 23(e), (g), (h).
28. There are a few notable exceptions. Both Judge Weinstein in the Zyprexa litigation and Judge Fallon in the Vioxx litigation have likened nonclass aggregation to class-action litigation, calling it a "quasi-class action." They thus use equitable authority to monitor the litigation. In re Zyprexa Prods. Liab. Litig., 433 F. Supp. 2d 268, 271 (E.D.N.Y. 2006) ("While the settlement in the instant action is in the nature of a private agreement between individual plaintiffs and the defendant, it has many of the characteristics of a class action; it may be characterized properly as a quasi-class action subject to the general equitable power of the court."); In re Vioxx Prod. Liab. Litig., 574 F. Supp. 2d 606, 611-12 (E.D. La. 2008) (comparing the case to Zyprexa and concluding that "the Vioxx global settlement may properly be analyzed as occurring in a quasi-class action, giving the Court equitable authority . . .").
29. see also L. Elizabeth Chamblee [Burch], Unsettling Efficiency: When Non-Class Aggregation of Mass Torts Creates Second-Class Settlements, 65 LA. L. REV. 157,241 (2004) ("[Multidistrict process should also permit judicial approval of settlements . . . [to] ensure that similarly situated individuals receive equal fairness protections regardless of how the courts aggregated the litigation.").
30. 28 U.S.C. § 1407 (2006).
31. For instance, institutional designers should reevaluate the imperative in the Manual for Complex Litigation, which states: "Pretrial proceedings in [related] cases should be coordinated or consolidated under Federal Rule of Civil Procedure 42(a), even if the cases are filed in more than one division of the court." MANUAL FOR COMPLEX LITIGATION (FOURTH) §10.123(2004).
32. Procedural Justice, supra note 5, at 29-43.
33. Id. at 45.
34. Id.
35. Id.
36. Id. at 46; Issacharoff, Class Action Conflicts, supra note 8, at 829 (discussing how courts are overworked, have limited access to quality information, and strive to quickly clear their dockets).
37. Richard A. Nagareda, Turning From Tort to Administration, 94 MICH. L. REV. 899,968 (1996).
38. Burch, Procedural Justice, supra note 5, at 46.
39. Id.
40. Id.
41. See Charles Silver, Merging Roles: Mass Tort Lawyers as Agents and Trustees, 31 PEPP. L. REV. 301, 302-03 (2003) (positing that Coffee's argument applies with equal force to mass-tort representations because "[t]he plaintiffs' attorneys provide crucial financing").
42. Kutak Symposium: Professional Responsibility and the Corporate Lawyer, 13 GEO. J. LEGAL ETHICS 331, 340-41 (2000) (transcribed comments by Professor John C. Coffee, Jr.) (observing the same phenomenon in the class-action context). Yet, getting rid of the contingency fee and attorney financing is not a realistic solution.
43. Mekdeci v. Merrell Nat'l Lab., 711 F.2d 1510 (11th Cir. 1983).
44. Id. at 1516.
45. see also JOSEPH SANDERS, BENDECTIN ON TRIAL: A STUDY OF MASS TORT LITIGATION 6-7 (1998).
46. MICHAEL D. GREEN, BENDECTIN AND BIRTH DEFECTS: THE CHALLENGES OF MASS TOXIC SUBSTANCES LITIGATION 131 (1996).
47. SANDERS, supra note 35, at 2-15 (chronicling the Mekdeci's case, including the jury verdict that failed to provide damages to their son).
48. Richard L. Marcus, Reexamining the Bendectin Litigation Story, 83 IOWA L. REV. 231, 234-36 (1997) ("Given the huge out-of-pocket costs incurred by Mekdeci's Florida lawyers to take the case to trial - approximately $150,000 - this outcome was extremely disappointing.").
49. Marcus, supra note 36, at 236.
50. Mekdeci, 711 F.2 dat 1516.
51. Id.
52. BIRTH DEFECT RESEARCH FOR CHILDREN, INC., http://www.birthdefects.org/ story/ (last visited Oct. 25, 2010).
53. See Erichson, supra note 7, at 558-60.
54. Marcus, supra note 36, at 252.
55. See Burch, Litigating Groups, supra note 5, at 33-34; see also Kwok Leung, Kwok-Kit Tong & E. Allan Lind, Realpolitik Versus Fair Process: Moderating Effects of Group Identification on Acceptance of Political Decisions, 3 J. PERSONALITY & Soc. PSYCHOL. 476, 476-77 (2007) (suggesting that individuals who do not identify with their own group will be less concerned about fairness to others). Group-oriented individuals and individuals-within- the-collective are best conceived not as a dichotomy, but as points along a spectrum of group cohesion. For more information about this spectrum, see Burch, Procedural Justice, supra note 5, at 15-24.
56. See Erick van Dijk & David De Cremer, Tacit Coordination and Social Dilemmas: On the Importance of Self-Interest and Fairness, in SOCIAL PSYCHOLOGY AND ECONOMICS 141, 146-47 (David De Cremer et al. eds., 2006).
57. See infra Part III.B. for a discussion on how subgroup competition can benefit the overall group through diverse ideas subject to certain conditions.
58. T.K. Ann, R. Mark Isaac & Timothy C. Salmon, Endogenous Group Formation, 10 J. PUB. ECON. THEORY 171,190-91 (2008).
59. Burch, Litigating Groups, supra note 5, at 35-36.
60. See Coffee, supra note 6, at 397-98 (suggesting that it is not "realistic to expect. . . separate law firms to bargain on behalf of their separate subclasses over the settlements' allocation when their own fees are pooled").
61. See id. at 398 (expressing concerns that "plaintiffs' attorneys for different subclasses could by pooling their fees effectively cancel the incentives that the law means to create for them to zealously represent their clients"). Not all courts enforce this kind of agreement.
62. See e.g., In re "Agent Orange" Prod. Liab. Litig., 818 F.2d 216, 222 (2d Cir. 1987) (holding that a consensual fee sharing arrangement between attorneys "places class counsel in a potentially conflicting position in relation to the interests of the class").
63. See Coffee, supra note 6, at 398.
64. These examples are based on similar examples by Robyn M. Dawes. See Robyn M. Dawes, Social Dilemmas, 31 ANN. REV. PSYCHOL. 169,170 (1980).
65. Id.
66. van Dijk & De Cremer, supra note 44, at 141 (observing that social dilemmas result in "mixed-motive situations" in which individuals are better off if they pursue their own interests, while the entire group is better off if individuals pursue group interests).
67. see also Michael Smithson & Margaret Foddy, Theories and Strategies for the Study of Social Dilemmas, in RESOLVING SOCIAL DILEMMAS 1-2 (Margaret Foddy et al. eds., 1999) ("[T]he reward or payoff to each individual for a selfish choice is higher than that for a cooperative one, regardless of what other people do; yet all individuals in the group receive a lower payoff if all defect than if all cooperate.").
68. Vioxx Settlement Agreement, supra note 1, § 1.2.8.1-2.
69. See Ernst Fehr & Klaus M. Schmidt, A Theory of Fairness, Competition, and Cooperation, 114 Q.J. ECON. 817, 818 (1999) ("Reality provides many examples indicating that people are more cooperative than is assumed in the standard self-interest model.").
70. Mizuho Shinada & Toshio Yamagishi, Bringing Back Leviathan into Social Dilemmas, in NEW ISSUES AND PARADIGMS IN RESEARCH ON SOCIAL DILEMMAS 93, 94 (Anders Biel et al. eds., 2008).
71. Tamara Relis, "It's Not About the Money!": A Theory of Misconceptions of Plaintiffs' Litigation Aims, 68 U. PITT. L. REV. 701,721 (2007).
72. Id at 723 (emphasis omitted).
73. Id. at 723 fig.4. Other studies confirm these results. See, e.g., Marc Galanter, Adjudication, Litigation, and Related Phenomena, in LAW AND THE SOCIAL SCIENCES 151, 191 (Leon Lipson & Stanton Wheeler eds., 1986) ("Litigants vary in the extent to which they seek justice or moral vindication instead of, or in addition to, a satisfactory resolution of their immediate discomforts.").
74. Marc Galanter, Reading the Landscape of Disputes: What We Know and Don't Know (and Think We Know) About Our Allegedly Contentious and Litigious Society, 31 UCLA L. REV. 4, 30-31 (1983).
75. Gerald B. Hickson et al., Factors that Prompted Families to File Medical Malpractice Claims Following Perinatal Injuries, 267 JAMA 1359, 1361 (1992) (finding that litigation motives included desire for money, to reveal cover-ups, and to protect others).
76. E. Allan Lind et al., In the Eye of the Beholder: Tort Litigants' Evaluations of their Experiences in the Civil Justice System, 24 LAW & Soc'Y REV. 953,983-86 (1990) (finding that litigants' satisfaction with the outcomes of their claims was largely determined by the litigants' perceptions of procedural fairness and expectations).
77. Erin Ann O'Hara & Douglas Yarn, On Apology and Consilience, 77 WASH. L. REV. 1121,1125(2002).
78. Gillian K. Hadfield, Framing the Choice Between Cash and the Courthouse: Experiences with the 9/11 Victim Compensation Fund, 42 LAW & Soc'Y REV. 645,649,660-62 (2008).
79. Id. at 649.
80. JEAN-JACQUES ROUSSEAU, DISCOURSE ON THE ORIGIN OF INEQUALITY 57-58 (Franklin Philip trans., Patrick Coleman ed. 1994) (1754). For a modern-day take on the stag hunt, see BRIAN SKYRMS, THE STAG HUNT AND THE EVOLUTION OF SOCIAL STRUCTURE 1-13 (2004) ("[T]he stag hunt does not solve the problem of cooperation. It allows cooperation in equilibrium, but there is also the noncooperative equilibrium.").
81. See Michael E. Bratman, Modest Sociality and the Distinctiveness of Intention, 144 PHIL. STUD. 149,152 (2009).
82. See id. at 154.
83. See id. at 153-54.
84. For an excellent treatment of this issue in the class action context, see Deborah L. Rhode, Class Conflicts in Class Actions, 34 STAN. L. REV. 1183,1188-89 (1982).
85. See BRUNO LATOUR, ARAMIS, OR THE LOVE OF TECHNOLOGY ix-x (Catherine Porter trans., Harvard Univ. Press 1996).
86. Elijah Millgram, Specificationism, in REASONING: STUDIES OF HUMAN INFERENCE AND ITS FOUNDATIONS 731, 731 (Jonathan E. Adler & Lance J. Rips eds., 2008).
87. Millgram, supra note 65, at 743.
88. Id. at 731-35.
89. Id. at 735.
90. Id. at 734.
91. See id. at 735.
92. See R. Scott Tindale et al., Shared Cognition in Small Groups, in BLACKWELL HANDBOOK ON SOCIAL PSYCHOLOGY: GROUP PROCESSES 5 (Michael A. Hogg & R. Scott Tindale eds., 2001); Community, MERRIAM- WEBSTER, http://www.merriam-webster.com/dictionary/community (last visited Nov. 14,2010).
93. Litigating Groups, supra note 5, at 23-26. I borrow this term from Margaret Gilbert, but do not use it in exactly the same way that she does. MARGARET GILBERT, SOCIALITY AND RESPONSIBILITY: NEW ESSAYS IN PLURAL SUBJECT THEORY 2-3 (2000) ("People form a plural subject, in my sense, when they are jointly committed to doing something as a body, in a broad sense of 'do.'").
94. Litigating Groups, supra note 5, at 23-26.
95. Id. at 24.
96. Id. at 43-47.
97. Id. at 43-45.
98. Id. at 43.
99. Id. at 45-47.
100. Id.
101. Id.
102. For further reading and debate on the nature, existence, and scope of these obligations, see WILL KYMLICKA, LIBERALISM, COMMUNITY, AND CULTURE (1989).
103. ALASDAIR MACINTYRE, AFTER VIRTUE: A STUDY IN MORAL THEORY (3rd ed., Univ. of Notre Dame Press 2007) (1981) (describing the moral culture of modernity through the concept of virtues); MICHAEL J. SANDEL, LIBERALISM AND THE LIMITS OF JUSTICE (2d ed. 1998).
104. MICHAEL WALZER, SPHERES OF JUSTICE: A DEFENSE OF PLURALISM AND EQUALITY (1983).
105. For a more detailed account of moral and political theory, see Elizabeth Chamblee Burch, Aggregation, Community, and the Line Between, 58 U. KANSAS L. REV. 889,904-15 (2010).
106. See JOHN RAWLS, A THEORY OF JUSTICE 108-17 (1971) (explaining that obligations can arise through natural duties and voluntary acts, such as promises and agreements).
107. MICHAEL J. SANDEL, JUSTICE: WHAT'S THE RIGHT THING TO DO? 225 (2009) ("[Obligations of solidarity, or membership ⋯ involve moral responsibilities we owe, not to rational beings as such, but to those with whom we share a certain history.").
108. MACINTYRE, supra note 81, at 216.
109. See id.; SANDEL, supra note 84, at 223-25 (describing the deficiencies of the liberal theory in accounting for obligations of solidarity); WALZER, supra note 81, at 62.
110. SANDEL, supra note 84, at 241.
111. see also RONALD DWORKIN, LAW'S EMPIRE 195-202 (1986) ("[I]t is a history of events and acts that attract obligations, and we are rarely even aware that we are entering upon any special status as the story unfolds.").
112. SANDEL, supra note 84, at 241 ("We've been trying to figure out whether all our duties and obligations can be traced to an act of will or choice. I've argued that they cannot; obligations of solidarity or membership may claim us for reasons unrelated to a choice - reasons bound up with the narratives by which we interpret our lives and the communities we inhabit.").
113. STEPHEN C. YEAZELL, FROM MEDIEVAL GROUP LITIGATION TO THE MODERN CLASS ACTION 42-52 (1987).
114. Id. at 270-71.
115. Rosenberg, supra note 11, at 832.
116. NAGAREDA, supra note 9, at 119.
117. See Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. REV. 97,103-04 (2009) ("The implication invited by class counsel is that only by taking an aggregate, class-wide perspective does the wrong allegedly committed by the defendant come into focus.").
118. See, e.g., In re McDermott Int'l, Inc. Sec. Litig., No. 08 Civ. 9943(DC), 2009 WL 579502, at 2-5 (S.D.N.Y. Mar. 6, 2009) (appointing family members as lead plaintiffs and not requiring thern to proffer an evidentiary showing because they were presumably cohesive).
119. Varghese v. China Shenghuo Pharm. Holdings, Inc., 589 F. Supp. 2d 388, 392 (S.D.N.Y. 2008).
120. Freudenberg v. E Trade Fin. Corp., Nos. 07 Civ. 8538, 07 Civ. 8808, 07 Civ. 9651, 07 Civ. 10400, 07 Civ. 10540, 2008 WL 2876373, at 4 (S.D.N.Y. July 16, 2008).
121. Reimer v. Ambac Fin. Group, Inc., No. 08 Civ. 411, 2008 WL 2073931, at, 3 (S.D.N.Y. May 9, 2008).
122. In re Nature's Sunshine Prods., Inc., No. 2:06-CV-267 TS, 2006 WL 2380965, at, 1 (D. Utah Aug. 16, 2006) (appointing a group as lead plaintiff based on affidavits demonstrating their cooperative efforts); In re Star Gas Sec. Litig., No. 3:04CV1766, 2005 WL 818617, at, 4-5 (D. Conn. Apr. 8, 2005).
123. Constance Sczesny Trust v. KPMG LLP, 223 F.R.D. 319,323 (S.D.N.Y. 2004).
124. Varghese, 589 F. Supp. 2d at 392.
125. See McDermott Int'l, 2009 WL 579502, at 2-5; Varghese, 589 F. Supp. 2d at 394. In Varghese, the court notes that the PLSLRA demonstrates a concern for lawyer-driven coalitions. Id. at 392.
126. FED. R. CIV. P. 23(b)(2).
127. See, e.g., Allison v. Citgo Petroleum Corp., 151 F.3d 402, 413 (5th Cir. 1998) ("In contrast, because of the group nature of harm alleged and the broad character of relief sought, the (b)(2) class is, by its very nature, assumed to be a homogenous and cohesive group with few conflicting interests among its members.").
128. Holmes v. Cont'l Can Co., 706 F.2d 1144, 1155 n.8, 1156-57 (11th Cir. 1983) ("At base, the (b)(2) class is distinguished from the (b)(3) class by class cohesiveness." (citation omitted)).
129. Penson v. Terminal Transp. Co., 634 F.2d 989, 993-94 (5th Cir. 1981).
130. Johnson v. Gen. Motors Corp., 598 F.2d 432, 437-38 (5th Cir. 1979).
131. Wetzel v. Liberty Mut. Ins. Co., 508 F.2d 239, 256 (3d Cir. 1975).
132. see also FED. R. CIV. P. 23 advisory committee note, reprinted in 39 F.R.D. 69, 106 (1966) ("In the degree that there is cohesiveness or unity in the class and the representation is effective the need for notice to the class will tend toward a minimum.").
133. Allison, 151 F.3d at 413. The Eleventh Circuit similarly relied on a presumption of cohesion for 23(b)(2) groups. Holmes, 706 F.2d at 1155-56.
134. Wetzel, 508 F.2d at 256.
135. See Rhode, supra note 64, at 1215-16.
136. 711 F. Supp. 1125 (D.D.C. 1989).
137. Id. at 1130-32.
138. Id. at 1131 ("[Differences of opinion are unavoidable [but] diversity of opinion within a class does not defeat class certification.").
139. I thank David Marcus for this point.
140. See, e.g., Holmes v. Cont'l Can Co., 706 F.2d 1144, 1156 n.9 (11th Cir. 1983) ("There will be situations where the class is cohesive, or where the legal relationship of the members enable one or more to stand in judgment for all, and where the representatives are truly representative and faithful - a most important factor." (citation omitted)).
141. Burch, supra note 82, at 903 (reasoning that, because the 'presumed cohesion' of class action judgments binds absent litigants, cohesion in nonclass aggregate claims warrants limiting plaintiffs' ability to pursue their own claims).
142. Ostrom, supra note 14, at 140; Stout, supra note 14, at 22-23.
143. A "special master" is someone who serves "as a neutral advisor to the court regarding the fairness of settlement and the adequacy of representation." PRINCIPLES OF THE LAW OF AGGREGATE LITIG., supra note 20, § 3.09(a)(2). Judge Weinstein often calls special masters "settlement masters" to convey their role in settling the dispute. See, e.g., In re N.Y. Cnty. DES Litig., 142 F.R.D. 58, 60 (E.D.N.Y. 1992) ("The powers of Settlement Master and Referee are for relevant purposes equivalent."); In re Joint E. & S. Dists. Asbestos Litig., 737 F. Supp. 735, 738-39 (E. & S. D.N.Y. 1990) (describing the obligation of settlement masters to have frank and confidential discussions with all plaintiffs).
144. PRINCIPLES OF THE LAW OF AGGREGATE LITIG., supra note 20, § 3.09(a)(1), (2).
145. As for judges' inherent equitable authority, see, for example, Ex parte Peterson, 253 U.S. 300, 312 (1920) ("Courts have (at least in the absence of legislation to the contrary) inherent power to provide themselves with appropriate instruments required for the performance of their duties ⋯. [including] authority to appoint persons unconnected with the court to aid judges in the performance of specific judicial duties . . . ." (citation omitted)); In re DES Cases, 789 F. Supp. 552, 559 (E.D.N.Y. 1992).
146. In re Joint E. & S. Dists. Asbestos Litig., 737 F. Supp. At 737; In re Agent Orange Prod. Liab. Litig., 611 F. Supp. 1396, 1450 (E.D.N.Y. 1985).
147. see also JACK B. WEINSTEIN, INDIVIDUAL JUSTICE IN MASS TORT LITIGATION 145 (1995) (asserting that courts define the functions of special masters expansively according to courts' traditional equitable authority).
148. MANUAL FOR COMPLEX LITIGATION (FOURTH), supra note 24, § 21.632 (discussing the power of judges to appoint special masters in order to review the settlement's terms and ensure fairness).
149. Jack B. Weinstein & Eileen B. Hershenov, The Effect of Equity on Mass Tort Law, 1991 U. ILL. L. REV. 269, 302 (1991) (discussing the expansion of the role of special master based on a liberal reading of Rule 53 and courts' equitable tradition). Using special masters is a long historical tradition that arose in the English Chancery.
150. Linda J. Silberman, Masters and Magistrates Part II: The American Analogue, 50 N.Y.U. L. REV. 1297, 1321-22 (1975) ("The special master . . . grew out of early English chancery practice: it was not derived from the later system of masters at law who render pretrial assistance in civil matters.").
151. FED. R. CIV. P. 53(a)(1)(C).
152. See CHARLES E. LINDBLOM, THE POLICY-MAKING PROCESS 13 (1968) (presenting a model for rational decision-making). If plaintiffs' counsel is initially uncooperative, the judge might endow the special officer with access to discovery tools. PRINCIPLES OF THE LAW OF AGGREGATE Line, supra note 20, § 3.09 cmt. (a)(1). Of course, the actual charge that the judge gives the special officer will vary depending on the litigation's circumstances, and this flexibility is necessary to allow the judge to tailor the procedures to the unique aspects of each case.
153. In re Holocaust Victims Assets Litig., 424 F.3d 132,137 (2d Cir. 2005).
154. Id.
155. See, e.g., In re Asbestos Litig., 90 F.3d 963, 972 (5th Cir. 1996), vacated and remanded on other grounds sub nom. Amchem Prods., Inc., 521 U.S. 591 (1997) (vacating on Rule 23 grounds), off don remand, 134 F.3d 668 (5th Cir. 1998) (affirming the earlier disposition and finding that the requirements of class certification were met), rev'd on other grounds sub nom. Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999) (reversing based on Rule 23 class certification requirements).
156. see also Susan P. Koniak, Feasting While the Widow Weeps: Georgine v. Amchem Products, Inc., 80 CORNELL L. REV. 1045, 1092 (1995) (arguing that, ordinarily, a guardian would be required to protect the interests of unknowing plaintiffs).
157. William B. Rubenstein, The Fairness Hearing: Adversarial and Regulatory Approaches, 53 UCLA L. REV. 1435, 1451 (2006) ("In other situations, courts have appointed guardians for class members at the moment of settlement to consider the value of the settlement to the class or some subset thereof.").
158. BLACK'S LAW DICTIONARY 774 (8th ed. 2004) (categorizing "guardian ad litem" as a subset of guardians).
159. See Kenneth R. Feinberg, How Can ADR Alleviate Long-Standing Social Problems?, 34 FORDHAM URB. L.J. 785,789-91 (2007).
160. A longstanding debate exists between mediation purists and mediation pluralists. See James J. Alfini, Evaluative Versus Facilitative Mediation: A Discussion, 24 FLA. ST. U. L. REV. 919, 919 (1997).
161. Chris Guthrie, The Lawyer's Philosophical Map and the Disputant's Perceptual Map: Impediments to Facilitative Mediation and Lawyering, 6 HARV. NEGOT. L. REV. 145,146-48 (2001). I adopt the pluralistic approach, which acknowledges that mediators both facilitate communication and evaluate the case itself. See Leonard L. Riskin, Understanding Mediators' Orientations, Strategies, and Techniques: A Grid for the Perplexed, 1 HARV. NEGOT. L. REV. 7,17(1996).
162. See In re Joint E. & S. Dists. Asbestos Litig., 737 F. Supp. 735, 738-39 (E. & S. D.N.Y. 1990). The common-interest privilege preserves client confidentiality. See Mitchell A. Lowenthal & Howard M. Erichson, Modern Mass Tort Litigation, Prior-Action Depositions and Practice-Sensitive Procedure, 63 FORDHAM L. REV. 989, 1001 (1995) ("Within the plaintiffs' network, the attorneys claim a 'common interest privilege' to protect confidential communications among the various plaintiffs' counsel in mass tort litigation.").
163. I discuss this process in more detail in Part III.B.
164. Procedural Justice, supra note 25, at 29-31; see also JOHN THIBAULT & LAURENS WALKER, PROCEDURAL JUSTICE: A PSYCHOLOGICAL ANALYSIS 104 (1975) (finding that subjects under various conditions all expressed a preference for adversary procedure).
165. Pauline Houlden et al., Preference for Modes of Dispute Resolution as a Function of Process and Decision Control, 14 J. EXP. Soc. PSYCHOL. 13, 29 (1978) (reporting that an adversarial procedure is preferred because it provides for a "full presentation of all issues relevant to a particular dispute").
166. Peter H. Schuck, The Role of Judges in Settling Complex Cases: The Agent Orange Example, 53 U. Cm. L. REV. 337,348 (1986).
167. See infra notes 255-257 and accompanying text (estimating that the initial Vioxx cases cost around $1.5 million to develop).
168. See PRINCIPLES OF THE LAW OF AGGREGATE LITIG., supra note 20, at §§ 3.02 cmt. a, 3.05 cmt. b, 3.09.
169. MANUAL FOR COMPLEX LITIGATION (FOURTH), supra note 24, at § 21.632. As the American Law Institute recommends, the court may appoint a special officer, a guardian ad litem, a neutral or special master, or even its own expert to analyze the settlement's fairness. PRINCIPLES OF THE LAW OF AGGREGATE LITIG., supra note 20, at § 3.09.
170. Reynolds v. Beneficial Nat'l Bank, 288 F.3d 277, 279-80 (7th Cir. 2002).
171. see also Chris Brummer, Note, Sharpening the Sword: Class Certification, Appellate Review, and the Role of the Fiduciary Judge in Class Action Lawsuits, 104 COLUM. L. REV. 1042,1060-61 (2004).
172. See, e.g., Wim B. G. Liebrand, The Effect of Social Motives, Communication and Group Size on Behavior in an "N-Person Multi-Stage Mixed-Motive Game, 14 EUR. J. Soc. PSYCHOL. 239, 239 (1984).
173. L. Musante et al, The Effects of Control on Perceived Fairness of Procedures and Outcomes, 19 J. EXP. Soc. PSYCHOL. 223,237-38 (1983); J. Orbell et al., The Limits of Multilateral Promising, 100 ETHICS 616,627 (1990); Ostrom, supra note 14, at 140.
174. see also Elinor Ostrom & James Walker, Neither Markets Nor States: Linking Transformation Processes in Collective Action Arenas, in PERSPECTIVES ON PUBLIC CHOICE: A HANDBOOK 62 (Dennis C. Mueller ed., 1997) (reporting that when individuals are given the opportunity to interact, they adopt cooperative strategies that positively influence the outcome in many settings). Irving Janis's now classic text, Groupthink, raises questions about the efficacy of what I am proposing. IRVING L. JANIS, VICTIMS OF GROUPTHINK 8-9 (1972) (discussing the detrimental effects of group cohesiveness on the decision-making process). Although his take still predominates popular notions about groups and remains compelling, research in the years since his publication has generated skepticism. See Robert S. Baron, So Right It's Wrong: Groupthink and the Ubiquitous Nature of Polarized Group Decision Making, in 37 ADVANCES IN EXPERIMENTAL SOCIAL PSYCHOLOGY 219,245-47 (Mark P. Zanna ed., 2005) ("A review of the research and debate regarding Janis's groupthink model leads to the conclusion that after some 30 years of investigation, the evidence has largely failed to support the formulation's more ambitious and controversial predictions, specifically those linking certain antecedent conditions with groupthink phenomena."); 171 Norbert L. Kerr & R. Scott Tinsdale, Group Performance and Decision Making, 55 ANN. REV. PSYCHOL. 623, 640 (2004). My proposal for including dissenting viewpoints further diminishes this risk.
175. Peter Kollock, Social Dilemmas: The Anatomy of Cooperation, 24 ANN. REV. SOCIOL. 183, 194 (1998).
176. David M. Messick & Marilynn B. Brewer, Solving Social Dilemmas: A Review, in 4 REVIEW OF PERSONALITY AND SOCIAL PSYCHOLOGY 11, 27 (L. Wheeler & P. Shaver eds., 1983) ("[Cooperative solutions to social dilemmas may be facilitated by exploiting the constructive social ties and affiliative bonds arising from social group identity.").
177. See Robert H. Frank et al., The Evolution of One-Shot Cooperation: An Experiment, 14 ETHOLOGY & SOCIOBIOLOGY 247, 255 (1993) (finding that predictions based on chance were more than seven percent less accurate than those made by communicative groups); 175 Norbert L. Kerr & Cynthia M. Kaufman-Gilliland, Communication, Commitment, and Cooperation in Social Dilemmas, 66 J. PERSONALITY & Soc. PSYCHOL. 513,525-26 (1994).
178. S.S. Komorita et al., Reciprocity and the Induction of Cooperation in Social Dilemmas, 62 J. PERSONALITY & Soc. PSYCHOL. 607,614-15 (1992).
179. See, e.g., Robin Dawes, Social Dilemmas, Economic Self-interest, and Evolutionary Theory, in FRONTIERS OF MATHEMATICAL PSYCHOLOGY: ESSAYS IN HONOR OF CLYDE COOMBS 53, 62 (Donald R. Brown & J.E. Keith Smith eds., 1991).
180. FED. R. CIV. P. 16(a).
181. Id.
182. FED. R. CIV. P. 26(f).
183. See PRINCIPLES OF THE LAW OF AGGREGATE LITIG. supra note 20, § 1.05 cmt. c.
184. See James D. Fearon, Deliberation as Discussion, in DELIBERATIVE DEMOCRACY 44, 45 (Jon Elster ed. 1998).
185. Ostrom, supra note 14, at 140.
186. Jon Elster, Introduction to DELIBERATIVE DEMOCRACY 1,12 (Jon Elster ed., 1998).
187. Frank I. Michelman, The Supreme Court, 1985 Term - Forward: Traces of Self- Government, 100 HARV. L. REV. 4,34 (1986).
188. See Kelly Bouas Henry, Perceptions of Cooperation in a Longitudinal Social Dilemma, 31 SMALL GRP. RES. 507, 518-19 (2000).
189. M. Lea et al., Knowing Me, Knowing You: Anonymity Effects on Social Identity Processes within Groups, 27 PERSONALITY Soc. PSYCHOL. BULL. 526, 528 (2001).
190. Gary Charness, Ernan Harvuvy & Doron Sonsino, Social Distance and Reciprocity: An Internet Experiment, 63 J. ECON. BEHAV. & ORG. 88, 101 (2007).
191. Lars Backstrom et al., Group Formation in Large Social Networks: Membership, Growth, and Evolution, THE TWELFTH ACM SIGKDD INTERNATIONAL CONFERENCE ON KNOWLEDGE DISCOVERY AND DATA MINING (2006), http://delivery.acm. org/10.1145/1160000/1150412/p44backstrom.pdf?key1=1 150412&key2= 1624210921&coll=DL&dl=ACM&CFID=111637878&TOKEN=33799724 (last visited Oct. 31,2010).
192. Ostrom, supra note 14, at 140-41; see also NICHOLAS A. CHRISTAKIS & JAMES H. FOWLER, CONNECTED 286 (2009) ("[T]he spread of emotions seems to require face-to-face interaction. So while online connections increase the frequency of contact, it is not clear whether this has the same effect as being present in person.").
193. Elinor Ostrom et al., Covenants With and Without a Sword: Self-Governance is Possible, 86 AM. POL. SCI. REV. 404,410 (1992).
194. Mass tort litigants already form connections with one another through these social networking sites. For examples, see the "Agent Orange Lawsuit Filed by Vietnamese Victims" Facebook group, "Equal Treatment for Non-US Vioxx Victims" Facebook group, which petitioned for compensation on
195. Equal Treatment for Non-US Vioxx Victims, FACEBOOK, http://www.facebook. com/group.phpgid=8611202842 (last visited Oct. 31, 2010).
196. 194 MerckSettlement, YAHOO GROUPS, http://groups.yahoo.com/group/ MerckSettlement/(last visited Oct. 21, 2010) (Yahoo Groups page dedicated to connecting potential Merk plaintiffs with one another).
197. KENNETH R. FEINBERG, WHAT IS LIFE WORTH?: THE UNPRECEDENTED EFFORT TO COMPENSATE THE VICTIMS OF 9/11, at 55-60 (2005).
198. Peter H. Schuck, The Role of Judges in Settling Complex Cases: The Agent Orange Example, 53 U. CHI. L. REV. 337, 357-58 (1986). Judge Weinstein did something similar in the DES cases.
199. See Deborah R. Hensler, A Glass Half Full, a Glass Half Empty: The Use of Alternative Dispute Resolution in Mass Personal Injury Litigation, Ti TEX. L. REV. 1587, 1621 n.190 (1995). Although Judge Weinstein certified Agent Orange as a class action, there is ample reason after Amchem, Ortiz, and CAFA to believe that it could not be certified today. See NAGAREDA, supra note 9, at 74-75.
200. FEINBERG, supra note 142, at 47-49.
201. See, e.g., About Organizing for America, ORGANIZING FOR AMERICA, http://www.barackobama.com/learn/about-ofa.php (last visited Oct. 21, 2010). For more information about how the Obama campaign used YouTube to advertise and combat negative stories, see CHRISTAKIS & FOWLER, supra note 139, at 204-05.
202. See CHRISTAKIS & FOWLER, supra note 139, at 205; L.A. Henao, Columbians Tell FARC: "Enough's Enough ", CHRISTIAN SCI. MONITOR, Feb. 6,2008, at 25.
203. Burch, supra note 82, at 900 (citing a website for Navy Moms that provides "meeting kits" to facilate local face-to-face gatherings).
204. See PRINCIPLES OF THE LAW OF AGGREGATE Line, supra note 20, at § 1.05 cmt (i).
205. Paulette Rogers, My Story, PLAINTIFF'S VIEW, http://www.plaintiffsview. org/MyStoryPaulette.html (last visited Nov. 3, 2010) (providing a forum for Vioxx plaintiffs to tell their stories). For a general description of the various ways that class-action plaintiffs can use and benefit from internet communications see Robert H. Klonoff et al., Making Class Actions Work: The Untapped Potential of the Internet, 69 U. PITT. L. REV. 727, 763-64 (2008).
206. FED. R. Crv. P. 20(a)(2); FED. R. CIV. P. 42(a).
207. See MODEL RULES PROF'L CONDUCT R. 1.7 cmts. 2-5 (describing how to identify and address a conflict of interest).
208. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1997).
209. Hansberry v. Lee, 311 U.S. 32, 45 (1940) (explaining that a group cannot be said to adequately represent the class in litigating their interests simply because they are members of that class); PRINCIPLES OF THE LAW OF AGGREGATE Lira., supra note 20, at § 1.05(c)(8) (recommending that judges employ case-management techniques such as severance, subclassing, coordination, and consolidation to ensure adequate representation).
210. This inquiry might focus on similar substantive laws and common evidence. The Restatement suggests several factors to consider in deciding what constitutes the "same issue," including: Is there a substantial overlap between the evidence or argument to be advanced in the second proceeding and that advanced in the first? Does the new evidence or argument involve application of the same rule of law as that involved in the prior proceeding? Could pretrial preparation and discovery relating to the matter presented in the first action reasonably be expected to have embraced the matter sought to be presented in the second? How closely related are the claims involved in the two proceedings? RESTATEMENT (SECOND) OF JUDGMENTS § 27 cmt. c (1980).
211. see also PRINCIPLES OF THE LAW OF AGGREGATE LITIG., supra note 20, at § 2.01 ("Common issues are those legal or factual issues that are the same in functional content across multiple civil claims, regardless of whether their disposition would resolve all contested issues in the litigation.").
212. John C. Coffee, Jr., Class Action Accountability: Reconciling Exit, Voice, and Loyalty in Representative Litigation, 100 COLUM. L. REV. 370, 374-75 (2000) (discussing "Balkanization" of the class that results from requiring excessive subclassing).
213. PRINCIPLES OF THE LAW OF AGGREGATE LITIG., supra note 20, at § 1.05 cmt. k.
214. See Amchem Prods., 521 U.S. at 627 (recognizing the importance of identifying subgroups and ensuring they are adequately represented).
215. Kremer v. Chem. Constr. Co. 456 U.S. 461, 462 (1982) (holding that due process requires plaintiffs be given a "full and fair opportunity to litigate"); Hansberry, 311 U.S. at 45 (explaining that nominal membership in a class does not ensure one's individual interests are adequately represented during litigation); Linda S. Mullenix, Taking Adequacy Seriously: The Inadequate Assessment of Adequacy in Litigation and Settlement Classes, 57 VAND. L. REV. 1687, 1733-41 (2004).
216. Patrick Woolley, Rethinking the Adequacy of Adequate Representation, 75 TEX. L. REV. 571,602-03(1997).
217. HOWARD REINGOLD, SMART MOBS 179 (2002) ("[A] diversity of cooperation thresholds among ⋯ individuals can tip a crowd into a sudden epidemic cooperation.").
218. JAMES SUROWIECKI, THE WISDOM OF CROWDS 36 (2004) (stating that homogeneous groups present groupthink problems that more diverse groups do not).
219. SCOTT E. PAGE, THE DIFFERENCE: HOW THE POWER OF DIVERSITY CREATES BETTER GROUPS, FIRMS, SCHOOLS, AND SOCIETIES 155-58 (2007) 159 Id, at 335.
220. CASS R. SUNSTEIN, WHY SOCIETIES NEED DISSENT 14 (2003) (explaining that even a single "dissenter" can have a huge impact that benefits everyone by breaking the barriers of groupthink).
221. See PAGE, supra note 158, at 343.
222. W. RUSSELL NEUMAN, THE PARADOX OF MASS POLITICS: KNOWLEDGE AND OPINION IN THE AMERICAN ELECTORATE 126-27 (1986); Rhode, supra note 64, at 1222-23. For a general account of pluralism in the political process, see ROBERT A. DAHL, DILEMMAS OF PLURALIST DEMOCRACY: AUTONOMY V. CONTROL 31-54 (1982).
223. ROBERT A. DAHL, PLURALIST DEMOCRACY IN THE UNITED STATES: CONFLICT AND CONSENT 23-24 (1967).
224. Lisa Troyer & Reef Youngreen, Conflict and Creativity in Groups, 65 J. SOC. ISSUES 409,413(2009).
225. See, e.g., HOWARD RAIFFA, THE ART AND SCIENCE OF NEGOTIATION 255(1982).
226. See generally CASS R. SUNSTEIN, WHY GROUPS GO TO EXTREMES (2008). Cf. CASS R. SUNSTEIN, GOING TO EXTREMES: HOW LIKE MINDS UNITE AND DIVIDE 145-47 (2009) (arguing that checks and balances in partisan politics constrains group polarization and extreme movements).
227. See PAGE, supra note 158, at 349.
228. See infra Part III.D.3. Although I raise the issue here as a placeholder, this promises to be the main topic of a future article. Note, however, that allowing groups to splinter off into their own litigation may lose the benefits of diversity and may create a problem with inconsistent remedies.
229. See MICHAEL E. BRATMAN, Shared Intention, in FACES OF INTENTION 109, 116-22 (1999) (describing how participants can jointly agree on a course of action while having different reasons for doing so).
230. See infra Part III.C.2.
231. For example, veterans' groups organized Agent Orange litigants. Deborah R. Hensler & Mark A Peterson, Understanding Mass Personal Injury Litigation: A Socio-Legal Analysis, 59 BROOK. L. REV. 961, 1023 (1993). Groups such as the Asbestos Victims of America, the Dalkon Shield victims' organizations, and the Silicone Breast Implant organizations, also formed after the triggering event. Id. at 1024; Byron G. Stier, Resolving the Class Action Crisis: Mass Tort Litigation as Network, 2005 UTAH L. REV. 863, 919-21 (2005) (discussing how these victim groups can both facilitate litigation and provide other assistance through emotional support, information, and media attention).
232. Procedural Justice, supra note 5, at 48-50 (explaining the day in court ideal as a willingness-to-accept problem).
233. See ELINOR OSTROM ET AL., RULES, GAMES, AND COMMON-POOL RESOURCES 171 (1994).
234. This helps ensure adequate representation and maintains legitimacy if litigants choose a representative governance model instead of direct participation through deliberation.
235. See Robert Axelrod & William D. Hamilton, The Evolution of Cooperation, 211 SCIENCE 1390, 1393 (1981).
236. Nancy R. Buchan et al., Let's Get Personal: An International Examination of the Influence of Communication, Culture and Social Distance on Other Regarding Preferences, 60 J. ECON. BEHAV. & ORG. 373, 374-75 (2006).
237. Joseph Henrich, Cultural Group Selection, Coevolutionary Processes and Large-Scale Cooperation, 53 J. ECON. BEHAV. & ORG. 3, 9-12 (2004) (explaining how reciprocity and punishment systems develop in group interaction); Mark Van Vugt & Claire M. Hart, Social Identity as Social Glue: The Origins of Group Loyalty, 86 J. PERSONALITY & Soc. PSYCHOL. 585,586 (2004).
238. See Dawes, supra note 51, at 176; Shinada & Yamagishi, supra note 54, at 94. See generally Mark Van Vugt et al., Competitive Altruism: A Theory of Reputation-Based Cooperation in Groups, in THE OXFORD HANDBOOK OF EVOLUTIONARY PSYCHOLOGY 531 (R.I.M. Dunbar & Louise Barrett eds., 2007). Granted, not all other-regarding preferences are prosocial. Spite and punishment are common as well. But these also demonstrate that the homo economicus is not the correct model because people spend personal resources to punish, whereas no rational egoist would do so. See Ostrom, supra note 14, at 141.
239. Kelly S. Bouras & S.S. Komorita, Group Discussion and Cooperation in Social Dilemmas, 22 PERSONALITY & Soc. PSYCHOL. BULL. 1144,1144-50 (1996).
240. N.L. Kerr et al., That Still, Small Voice: Commitment to Cooperate as an Internalized Versus a Social Norm, 23 PERSONALITY & Soc. PSYCHOL. BULL. 1300,1300-11 (1997).
241. Group Consensus, Individual Consent, supra note 13 (manuscript at 15).
242. SANDEL, supra note 84, at 223-25.
243. My thanks to J.B. Ruhl for pointing this out to me.
244. THOMAS C. SCHELLING, THE STRATEGY OF CONFLICT 56 (1980).
245. Id. at 56-57.
246. Id. at 54.
247. Id. at 72-73.
248. Fairness may be a means to an end for some rather than an end in and of itself. It may be a strategic consideration, as some behavioral economists contend. See, e.g., John H. Kagel et al., Fairness in Ultimatum Games with Asymmetric Information and Asymmetric Payoffs, 13 GAMES & ECON. BEHAV. 100, 100 (1996). The proselfs may still desire distributive fairness because they may assume that unfair offers are likely to be rejected. See Rachel T.A. Croson, Information in Ultimatum Games: An Experimental Study, 30 J. ECON. BEHAV. & ORG. 197, 197-98 (1996).
249. Madan M. Pillutla & J. Keith Murnighan, Fairness in Bargaining, 16 Soc. JUST. RESEARCH 241, 241-42 (2003).
250. van Dijk & De Cremer, supra note 44, at 151.
251. van Dijk & De Cremer, supra note 44, at 148-50; see also Fehr & Schmidt, supra note 54, at 817.
252. David A. Schroeder et al, Justice Within Social Dilemmas, 7 PERSONALITY & Soc PSYCHOL. REV. 374,374 (2003).
253. Supra notes 78-80 and accompanying text (describing this moral obligation).
254. CHARLES FRIED, CONTRACT AS PROMISE: A THEORY OF CONTRACTUAL OBLIGATION 1 (1981).
255. RESTATEMENT (SECOND) OF CONTRACTS § 1 (1981).
256. Id. § 4. Even making an explicit promise may lead to disagreement about the exact nature of that promise and how to go about discharging that moral duty. See Curtis Bridgeman, Contracts as Plans, 2009 U. III. L. REV. 341,376 n.238.
257. Omri Ben-Shahar, "Agreeing to Disagree": Filling Gaps in Deliberately Incomplete Contracts, 2004 Wis. L. REV. 389, 395-396. This includes the obligation to bargain and negotiate in good faith. Charles L. Knapp, Enforcing the Contract to Bargain, 44 N.Y.U. L. REV. 673,679-81 (1969).
258. See MICHAEL E. BRATMAN, INTENTIONS, PLANS, AND PRACTICAL REASON 29-30 (1987).
259. Id.
260. Id.
261. See Bridgeman, supra note 188, at 374-75.
262. See, e.g., Cristina Bicchieri & Azi Lev-On, Computer-Mediated Communication and Cooperation in Social Dilemmas: An Experimental Analysis, 6 POLITICS, PHIL. & ECON. 139, 142 (2007).
263. Sanford L. Braver, Social Contracts and the Provision of Public Goods, in SOCIAL DILEMMAS: PERSPECTIVES ON INDIVIDUALS AND GROUPS 69,70 (David A. Schroeder ed., 1995) (challenging the traditional economic assumption that individuals exclusively pursue their self-interests).
264. Tore Ellingsen & Mangus Johannesson, Promises, Threats and Fairness, 114 ECON. J. 397, 417 (2004) ("[F]airmindedness strengthens the credibility of promises"); Komorita, supra note 128, at 614-15 (concluding that reciprocal strategies induce cooperation); Ostrom, supra note 140, at 410; Christoph Vanberg, Why Do People Keep Their Promises? An Experimental Test of Two Explanations, 76 ECONOMETRICA 1467-80 (Nov. 2008), available at http://www.uibk.ac.at/economics/bbl/teaching-ws0809/vanberg-new.pdf.
265. See Fehr & Schmidt, supra note 54, at 852; Ernst Fehr et al., Reciprocity as a Contract Enforcement Device: Experimental Evidence, 65 ECONOMETRICA 833, 833 (1997).
266. Lewis A. Kornhauser, Reliance, Reputation, and Breach of Contract, 26 J.L. & ECON. 691, 699-703 (1983).
267. Eric A. Posner, The Regulation of Groups: The Influence of Legal and Nonlegal Sanctions on Collective Action, 63 U. CHI. L. REV. 133, 155 (1996).
268. Robert E. Scott, A Theory of Self-Enforcing Indefinite Agreements, 103 COLUM. L. REV. 1641,1680-81 (2003). See generally DAVID HUME, A TREATISE OF HUMAN NATURE 541-46 (L. A. Selby-Bigge ed., 2d ed. 1978) (finding that promises are dependent on both moral obligations and government enforcement).
269. Lester G. Telser, A Theory of Self-Enforcing Agreements, 53 J. Bus. 27,37 (1980); 267 infra notes 234-240 and accompanying text.
270. See David De Cremer, Respect and Cooperation in Social Dilemmas: The Importance of Feeling Included, 28 PERSONALITY & Soc. PSYCHOL. BULL. 1335, 1335 (2002).
271. Tom R. Tyler & Peter Degoey, Collective Restraint in Social Dilemmas: Procedural Justice and Social Identification Effects on Support for Authorities, 69 J. PERSONALITY & Soc. PSYCHOL. 482,482(1995).
272. Ernst Fehr & Urs Fischbacher, Why Social Preferences Matter - The Impact of Non-Selfish Motives on Competition, Cooperation and Incentives, 112 ECON. J. CI, C3 (2002).
273. See id..
274. S. S. Komorita et al., Reciprocity and Cooperation in Social Dilemmas, 35 J. CONFLICT RESOL. 494,495 (1991).
275. See Scott, supra note 195, at 1677-78.
276. Id. at 1645.
277. See, e.g., Ben-Shahar, supra note 189, at 389-90. Incomplete agreements are often filled using "reasonable hypothetical consent ('mimicking' or 'majoritarian' default rules)⋯." Id. at 390. But see Scott, supra note 195, at 1688-91 (arguing that courts "may actually undermine the very norms of fairness that the legal system seeks to advance" by gap-filling).
278. See Scott, supra note 195, at 1689-90 (citing experiments by Fehr and GSchter, Ernst Fehr & Simon Gachter, Do Incentive Contracts Undermine Voluntary Cooperation? (Inst, for Empirical Research in Econ., Univ. of Zurich, Working Paper No. 34, 2002), available at http://papers.ssm.com/sol3/papers.cfm? abstract-id=313028).
279. Reciprocity and reputational concerns, along with trustworthiness, are most robust when people cooperate with one another over time in repeated interactions. See Frans van Dijk et al, Social Ties in a Public Good Experiment, 85 J. PUB. ECON. 275,291-92 (2002).
280. See id.
281. see also Roy F. Baumeister & Mark R. Leary, The Need to Belong: Desire for Interpersonal Attachments as a Fundamental Human Motivation, 117 PSYCHOL. BULL. 497, 501(1995).
282. Hensler & Peterson, supra note 170, at 1024; Stier, supra note 170, at 919-21.
283. See Eastbanc, Inc. v. Georgetown Park Assocs. II, L.P., 940 A.2d 996, 1002 (D.C. 2008).
284. 1 WILLISTONON CONTRACTS (4TH) § 3:2.
285. See Musante et al., supra note 125, at 237-38.
286. Donna Shestowsky, Procedural Preferences in Alternative Dispute Resolution: A Closer, Modern Look at an Old Idea, 10 PSYCHOL., PUB. POLICY, & L. 211,243 (2004).
287. See Dean G. Pruitt et al., Long-Term Success in Mediation, 17 LAW & HUMAN BEHAV. 313,327-28(1993).
288. See PRINCIPLES OF THE LAW OF AGGREGATE LITIG., supra note 20, at § 3.17(b)(3), (4).
289. See Rhode, supra note 64, at 1221-25; Shestowsky, supra note 207, at 233, 243 (observing that litigants prefer either well-established court rules or ex ante agreed on procedures).
290. For a general analysis of the costs and benefits of agency in the political context, see Samuel Issacharoff & Daniel R. Ortiz, Governing Through Intermediaries, 85 VA. L. REV. 1627(1999).
291. PRINCIPLES OF THE LAW OF AGGREGATE LITIG., supra note 20, at § 3.17(b).
292. Advanced waiver of conflicts of interest and full knowledge of others' settlement terms departs from standard practice under Model Rules of Professional Conduct 1.8(g). MODEL RULES OF PROF'L CONDUCT R. 1.8(g) (2003) ("A lawyer who represents two or more clients shall not participate in making an aggregate settlement⋯."); cf. Tax Auth., Inc. v. Jackson Hewitt, Inc., 898 A.2d 512, 514-15 (N.J. 2006) (holding that New Jersey's Rule of Professional Conduct 1.8(g) "prohibits an attorney who represents more than one client from entering into an aggregate settlement of the clients' claims without each client consenting to the settlement after its terms are known").
293. see also Nancy J. Moore, The American Law Institute's Draft Proposal to Bypass the Aggregate Settlement Rule: Do Mass Tort Clients Need (or Want) Group Decision Making?, 57 DEPAUL L. REV. 395, 403-04 (2008) (examining walk-away provisions and holdout litigants in settlements).
294. PRINCIPLES OF THE LAW OF AGGREGATE LITIG., supra note 20, §§ 1.05 (c)(1), 3.17(b).
295. see also infra notes 247-253 and accompanying text (describing a limited fairness review procedure).
296. TOM R. TYLER & STEVEN L. BLADER, COOPERATION IN GROUPS: PROCEDURAL JUSTICE, SOCIAL IDENTITY, AND BEHAVIORAL ENGAGEMENT 79 (2000) (citing numerous studies supporting these conclusions).
297. Michael E. Bratman, Dynamics of Sociality, 30 MIDWEST STUD, IN PHIL. 1,4-5 (2006) ("Such sharing does not require commonality in each agent's reasons for participating in the sharing ⋯. We participate for different reasons, but our shared valuing nevertheless establishes a common framework.").
298. See A Procedural Guide to the Electoral College, U.S. ELECTORAL COLLEGE, http://www.archives.gov/federal-register/electoral-college/procedural-guide. html ("Each state's allotment of electors is equal to the number of House members to which it is entitled plus two Senators."). Another alternative might be a point system like that used for allocating kidneys in the United States. See H. PEYTON YOUNG, EQUITY: IN THEORY AND PRACTICE 27-31(1994).
299. Geographic dispersion similarly adds to the difficulty of cooperation. This topic has, however, already been discussed. See supra notes 141-148 and accompanying text.
300. As Tom Tyler and David De Cremer describe: "Instrumental motivations reflect people's desire to gain material resources and avoid material losses. Social motives, as discussed by psychologists, differ in that they are motivations that flow from within the person, leading to self-regulatory behaviors." Tom R. Tyler & David De Cremer, Cooperation in Groups, in SOCIAL PSYCHOLOGY AND ECONOMICS 155, 157 (David De Cremer et al. eds., 2006).
301. Stout, supra note 14, at 22-23.
302. Ostrom, supra note 14, at 148; see also Eric van Dijk et al., Social Value Orientations and the Strategic Use of Fairness in Ultimatum Bargaining, 40 J. ExPER. SOC. PSYCHOL. 697, 699 (2004) (classifying individuals into prosocial or proself categories based on six choices and excluding a number of individuals who could not be classified).
303. See van Dijk & De Cremer, supra note 44, at 146-47.
304. Paul A.M. Van Lange & D. Michael Kuhlman, Social Value Orientations and Impressions of Partner's Honesty and Intelligence: A Test of the Might Versus Morality Effect, 67 J. PERSONALITY & Soc. PSYCHOL. 126, 127 (1994).
305. see also Tommy Garling, Value Priorities, Social Value Orientations and Cooperation in Social Dilemmas, 38 BRIT. J. SOC. PSYCHOL. 397, 397-99 (1999) (finding a relationship between justice and social value orientations).
306. Ostrom, supra note 14, at 138 ("A central finding is that the world contains multiple types of individuals, some more willing than others to initiate reciprocity to achieve the benefits of collective action.").
307. See Phillip Bonacich et al., Cooperation and Group Size in the N-Person Prisoner's Dilemma, 20 J. CONFLICT RESOL. 687, 687-705 (1976).
308. Norbert L. Kerr & Steven E. Bruun, Dispensability of Member Effort and Group Motivational Losses: Free-Rider Effects, 44 J. PERSONALITY & Soc. PSYCHOL. 78,78-94 (1983).
309. Norbert L. Kerr, Illusions of Efficacy: The Effects of Group Size on Perceived Efficacy in Social Dilemmas, 25 J. ExPER. Soc. PSYCHOL. 287,309 (1989).
310. Dawes, supra note 51, at 169.
311. Kollock, supra note 126, at 201-02.
312. See MANCUR OLSON, THE LOGIC OF COLLECTIVE ACTION 53-65 (1971).
313. Dawes, supra note 51, at 169 (stating that individuals generally stand more to gain from defecting than cooperating in social dilemmas).
314. OLSON, supra note 225, at 2 (emphasis omitted).
315. See Ernst Fehr & Herbert Gintis, Human Motivation and Social Cooperation: Experimental and Analytical Foundations, 33 ANN. REV. SOCIOL. 43,46 (2007).
316. Id. at 47-48 (finding that, in public-goods games, giving subjects an opportunity to punish other group members resulted in nearly all members cooperating and allocating to the public good, whereas, in the same experiment without the punishment mechanism, roughly fifty-five percent of the subjects contributed nothing).
317. See Messick & Brewer, supra note 126, at 11-44; Shinada & Yamagishi, supra note 54, at 95.
318. See, e.g., GREEN, supra note 36, at 240-41 (discussing the benefits of multidistrict consolidation, such as efficiency and sharing of resources).
319. See Howard M. Erichson, Informal Aggregation: Procedural and Ethical Implications of Coordination Among Counsel in Related Lawsuits, 50 DUKE L.J. 381, 388 (2000) (stating that attorneys litigating "similar claims against a common defendant . . . benefit greatly from teamwork").
320. Paul D. Rheingold, The Development of Litigation Groups, 6 AM. J. TRIAL ADVOC. 1,5 (1982).
321. Stier, supra note 170, at 896-910.
322. See E. ALLAN LIND & TOM R. TYLER, THE SOCIAL PSYCHOLOGY OF PROCEDURAL JUSTICE 106 (1988) (reasoning that opportunity to express one's views is critical to procedural fairness perceptions).
323. This is the principal break from Michael Sandel's version of communitarianism. Plaintiffs' voluntary associations can be captured, at least initially, through the liberal ethic of consent. See SANDEL, supra note 84, at 241.
324. Burch, supra note 82, at 907.
325. PETER M. BLAU, EXCHANGE AND POWER IN SOCIAL LIFE 47 (1964); Robert C. Ellickson, The Evolution of Social Norms: A Perspective from the Legal Academy, in SOCIAL NORMS 35,37 (Michael Hechter & Karl-Dieter Opp eds., 2001).
326. Ernst Fehr & Simon Gachter, Altruistic Punishment in Humans, 415 NATURE 137, 137-140 (2002) ("[C]ooperation flourishes if altruistic punishment is possible, and breaks down if it is ruled out.").
327. Ernst Fehr & Simon Gchter, Cooperation and Punishment in Public Goods Experiments, 90 AM. ECON. REV. 980,980-94 (2000).
328. Sally Engle Merry, Rethinking Gossip and Scandal, in TOWARD A GENERAL THEORY OF SOCIAL CONTROL 271, 284-86 (Donald Blacked., 1984).
329. Stout, supra note 14, at 31-32.
330. Robyn Dawes et al., Behavior, Communication, and Assumptions About Other People's Behavior in a Commons Dilemma Situation, 35 J. PERSONALITY & Soc. PSYCHOL. 1, 7 (1977), reprinted in RATIONALITY AND SOCIAL RESPONSIBILITY: ESSAYS IN HONOR OF ROBYN MASON DAWES 345,355 (2008).
331. See Norbert L. Kerr, Anonymity and Social Control in Social Dilemmas, in RESOLVING SOCIAL DILEMMAS 103,105 (Margaret Foddy et al. eds., 1999).
332. See ROBERT C. ELLICKSON, ORDER WITHOUT LAW: HOW NEIGHBORS SETTLE DISPUTES 208-10,225-29,230-33 (1991).
333. OSTROM, supra note 172, at 171.
334. See Posner, supra note 195, at 155.
335. See OSTROM, supra note 172, at 171.
336. Dawes, supra note 236, at 1 ("Results showed defection significantly higher in the no-communication and irrelevant-communication conditions than in relevant-communication and relevant-communication plus roll call condition.").
337. Ostrom, supra note 140, at 410-11.
338. Shinada & Yamagishi, supra note 54, at 110.
339. Abigail Barr, Social Dilemmas and Shame-Based Sanctions: Experimental Results from Rural Zimbabwe 13-14 (Ctr. for the Study of African Econs., Working Paper No. 149, 2001), available at http://www.bepress.com/cgi/viewcontent.cgi? article=1150&context=c sae ("[I]n those communities where individuals are more willing to criticise non-cooperators and less interested in criticising cooperators in order to save face, more cooperative outcomes result.").
340. As explored shortly, a limited judicial fairness review provides a legitimate outlet for minority dissenters to challenge the settlement. See infra notes 247-252 and accompanying text.
341. See, e.g., T. Yamagishi, Group Size and the Provision of a Sanctioning System in a Social Dilemma, in SOCIAL DILEMMA: THEORETICAL ISSUES AND RESEARCH FINDINGS 267, 267-87 (W.B.G. Liebrand et al. eds., 1992). Such studies are, however, conducted principally in public-goods dilemmas (as opposed to common-pool dilemmas) and thus employ a give frame rather than a take frame. Public-goods problems tend to trigger loss aversion and less cooperation than commons dilemmas (take frames), which more closely approximate the situation in large-scale litigation. In commons dilemmas, reward systems tend to elicit greater cooperation than sanctions. See Christopher McCusker & Peter J. Carnevale, Framing in Resource Dilemmas: Loss Aversion and the Moderating Effects of Sanctions, 61 ORG. BEHAV. & HUM. DECISION PROCESSES 190, 197-98 (1995). For an explanation of how non-class aggregation relates to common pool dilemmas, see supra notes 51-52 and accompanying text.
342. See, e.g., Olivier Bochet et al, Communication and Punishment in Voluntary Contribution Experiments, 60 J. ECON. BEHAV. & ORG. 11 (2006) (finding through experimentation that punishments increase contributions to public good but have little net effect on efficiency because of high costs).
343. Scott, supra note 195, at 1689-90 (citing Ernst Fehr & Gachter, Do Incentive Contracts Undermine Voluntary Cooperation? (Inst, for Empirical Res. in Econ., Univ. of Zurich, Working Paper No. 34, 2002), available at http://www.iew.unizh.ch/wp/iewwp034.pdf (suggesting "that explicit incentives may have costly side effects)).
344. supra notes 194-195 and accompanying text.
345. Shinada & Yamagishi, supra note 54, at 112-13 (surveying a number of research experiments on "The Dark Side of Sanctions"). See generally MICHAEL TAYLOR, ANARCHY AND COOPERATION (1976) (examining the effects on public goods of strong centralized states as opposed to anarchy).
346. Mark R. Lepper et al., Undermining Children's Intrinsic Interest with Extrinsic Reward: A Test of the "Overjustification" Hypothesis, 28 J. PERSONALITY & Soc. PSYCHOL. 129 (1973).
347. See, e.g., PRINCIPLES OF THE LAW OF AGGREGATE LITIG. § 3.18(a) (2010) ("Any claimant who is subject to a settlement⋯ is entitled ⋯ to challenge the settlement on the grounds that the settlement⋯ is not procedurally and substantively fair ⋯.").
348. See Seana Valentine Shiffrin, Paternalism, Unconscionability Doctrine, and Accommodation, 29 PHIL. & PUB. AFF. 205, 224 (2000) (arguing that the unconscionability doctrine is not paternalistic because the government has an interest in refusing to put its stamp of approval on an agreement that is "harmful, exploitative, or immoral").
349. For a detailed account of this fairness review, see Group Consensus, Individual Consent, supra note 13, at 22-25.
350. The American Law Institute suggests that judges consider: [T]he timing of the agreement, the sophistication of the claimants, the information disclosed to the claimants, whether the terms of the settlement were reviewed by a neutral or special master as defined in § 3.09(a)(2), whether the claimants have some prior common relationship, and whether the claims of the claimants are similar. PRINCIPLES OF THE LAW OF AGGREGATE LITIG., § 3.17(d) (2010). Section 3.18(a) also refers to section 3.17(d).
351. The American Law Institute proposes that judges consider "the costs, risks, probability of success, and delays in achieving a verdict; whether the claimants are treated equitably (relative to each other) based on their facts and circumstances; and whether particular claimants are disadvantaged by the settlement considered as a whole." Id. § 3.17(e).
352. See Issacharoff, Class Action Conflicts, supra note 8, at 833.
353. John C. Coffee, Jr., Accountability and Competition in Securities Class Actions: Why "Exit" Works Better than " Voice ", 30 CARDOZO L. REV. 407,425-29 (2008).
354. See Relis, supra note 55, at 744 (concluding that there is an "ideological dissonance that exists between how plaintiffs and the justice system, through its actors, view disputes").
355. Hadfield, supra note 58, at 649 ("[L]itigation represents more to some potential litigants than a means to satisfying private material ends; it represents principled participation in a process that is constitutive of a community.").
356. Joe Nocera, Forget Fair; It's Litigation as Usual, N.Y. TIMES, Nov. 17,2007, at CI.
357. Id.
358. Id.
359. See Hadfield, supra note 58.
360. Relis, supra note 55. For references to other studies, see supra note 57 (listing articles studying plaintiffs' "extra-legal objectives").
361. See generally Elizabeth Chamblee Burch, CAFA 's Impact on Litigation as a Public Good, 29 CARDOZO L. REV. 2517 (2008) (detailing the author's skepticism about corporate fear of regulating agencies).
362. I thank Richard Nagareda for pointing this out to me.
363. For examples of civil rights statutes that require losing defendants to pay "reasonable" plaintiffs' attorneys fees, see the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 626(b) (2006).
364. the Civil Rights Attorney's Fees Awards Act of 1976,42 U.S.C. § 1988(b) (2006); 363 Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(k).
365. and the Americans with Disabilities Act, 42 U.S.C. § 12205. For examples of other statutes promoting the public interest that also permit fee-shifting, see the Privacy Act of 1974, 5 U.S.C. § 552a(g)(2)(B), (g)(3)(B) (2006).
366. the Government in the Sunshine Act, 5 U.S.C. § 552b(i).
367. the Equal Access to Justice Act, 28 U.S.C. §§ 2412(b), 2412(d) (2006).
368. and the Clean Air Act, 42 U.S.C. § 7607(f) (2006).
369. Peter Szendro, Legal Malpractice - Pitfalls and Solutions, 609 PLI/L1T. 325, 330 (1999).
370. See Nancy J. Moore, Conflicts of Interest in the Simultaneous Representation of Multiple Clients: A Proposed Solution to the Current Confusion and Controversy, 61 TEX. L. REV. 211, 212 (1982) ("One of the most fertile sources of confusion has been the rules dealing with multiple representation of clients with conflicting interests."); 370 Szendro, supra note 262, at 330.
371. Developments in the Law: Conflicts of Interest in the Legal Profession, 94 HARV. L. REV. 1244, 1247 (1981) ("From 1908 to the present, the lawyer with conflicting interests has provided bench and bar with one of the toughest problems in legal ethics.").
372. Procedural Justice, supra note 5, at 8; Lawrence B. Solum, ProceduralJustice, 78 S. CAL. L. REV. 181,238 (2004). Most empirical studies on bipolar litigation demonstrate that cost and delay do not significantly affect litigants' procedural fairness opinions. See Burch, supra note 25, at 34-35 (examining studies on the effect of cost and delay on litigants' judgments of fairness).
373. As defined by the American Law Institute, divisible remedies "entail the distribution of relief to one or more claimants individually, without determining in practical effect the application or availability of the same remedy to any other claimant," whereas indivisible remedies are remedies where "the distribution of relief to any claimant as a practical matter determines the application or availability of the same remedy to other claimants." PRINCIPLES OF THE LAW OF AGGREGATE LITIG., § 2.04(a), (b) (2010).
374. See supra note 25 and accompanying text.
375. See ProceduralJustice, supra note 5, at 35-37.
376. See id. at 40 ("[T]he efficacy of counsel positively correlates with procedural fairness judgments.").
377. Robert W. Gordon, The Independence of Lawyers, 68 B.U. L. REV. 1, 30 (1988) ("Lawyers . . . do influence their clients to some extent, whether they want to or not.").
378. Russell Korobkin & Chris Gutherie, Psychology, Economics, and Settlement: A New Look at the Role of the Lawyer, 76 TEX. L. REV. 77,82 (1997).
379. Although a group principally seeking an indivisible remedy is more likely to be certified as a Rule 23(b)(1) or 23(b)(2) class and thus less likely to fall within the realm of nonclass aggregation, litigants seeking divisible relief may also request an indivisible remedy.
380. See Litigating Groups, supra note 5, at 12-16; Paul H. Edelman, Richard A. Nagareda & Charles Silver, The Allocation Problem in Multiple-Claimant Representations, 14 SUP. CT. ECON. REV. 95,100 (2006).
381. Vioxx Settlement Agreement, supra note 1; see also Richard A. Nagareda, Embedded Aggregation in Civil Litigation 49-52 (Vanderbilt Univ. Law Sch., Working Paper No. 09- 24, 2009), available at http://ssm.com/abstract=1506460 (examining the settlement of the Vioxx litigation using contracts with plaintiffs' law firms).
382. It generally takes a while for the Multi-District Litigation Panel to pick a judge, transfer those cases to that judge, and for that judge to then request and receive preliminary reports, affiliated counsel and companies, pending motions, and summaries of similar litigation pending in state courts. MANUAL FOR COMPLEX LITIGATION (FOURTH) § 22.61 (2004).
383. see also Current Developments, MDL-1657 Vioxx PRODUCTS LIABILITY LITIGATION, http://vioxx.laed.uscourts.gov/ (last updated Oct. 19, 2010) (providing a timeline with links to minute orders and current developments).
384. See, e.g, Alex Berenson, In First of Many Vioxx Cases, a Texas Widow Prepares to Take the Stand, N.Y. TIMES, July 13, 2005, at CI; Gardiner Harris, F.D.A. Official Admits 'Lapses' on Vioxx, N.Y. TIMES, Mar. 2, 2005, at A15.
385. E-mail from Al Pennington, Moderator of the Merck Settlement Grp., to Elizabeth Chamblee Burch, Assistant Professor of Law, Fla. State Univ. Coll. of Law (Oct. 20, 2008,01:22 AM) (on file with author).
386. See TYLER & BLADER, supra note 215, at 79, 85-86.
387. See Carrie Menkel-Meadow, When Litigation is Not the Only Way: Consensus Building and Mediation as Public Interest Lawyering, 10 WASH. U. J.L. & POL'Y 37, 39 (2002).
388. See Musante et al., supra note 125, at 223, 237-38 ("Regardless of role in a dispute, the opportunity to exercise control through the selection of a decision rule (no matter what the rule) resulted in enhanced evaluations of all aspects of the trial experience.").
389. For example, in the Vioxx litigation, plaintiffs attempted to certify a nationwide class or, alternatively, state-specific class actions.
390. On the problem of deliberative economy, see John S. Dryzek, Legitimacy and Economy in Deliberative Democracy, 29 POL. THEORY 651 (2001).
391. In re Combustion Eng'g, 391 F.3d 190,203-08 (3d Cir. 2004).
392. 11 U.S.C. § 524(g) (2006).
393. NAGAREDA, supra note 9, at 168-73.
394. NAGAREDA, supra note 9, at 169.
395. Id. at 170-73 ("[A] voting majority can be made to consist of non-malignant claimants whose interests may be adverse to those claimants with more severe injuries." (quoting Combustion Eng'g, 391 F.3d at 244)).
396. Another alternative might be a point system like that used for allocating kidneys in the United States. See YOUNG, supra note 217, at 27-31.
397. People may invoke distributive fairness norms for different reasons. As Eric van Dijk and David De Cremer explain, "fair offers do not necessarily reflect a true concern for fairness, but might also reflect an instrumental concern because bargainers may fear that unfair offers are likely to be rejected ⋯." van Dijk & De Cremer, supra note 44, at 146. They note further that research shows that some are truly concerned about fairness, whereas, others use fairness instrumentally. Id..
398. see also van Dijk, supra note 221, at 704.
399. O'Hara & Yarn, supra note 57, at 1125; Hiroko Tabuchi & Bill Vlasic, Toyota's Top Executive Under Rising Pressure, N.Y. TIMES, Feb. 6, 2010, at Bl (reporting on Akio Toyoda's apology for the Fall 2009 Toyota vehicle recall).
400. Paulette Rogers, My Story, PLAINTIFFS VIEW, http://www.plaintiffsview. org/MyStoryPaulette.html (last visited Nov. 3,2010).
401. See MICHAEL E. BRATMAN, Shared Valuing and Frameworks for Practical Reasoning, in STRUCTURES OF AGENCY 283,303 (2007).
402. See SUNSTEIN, supra note 160, at 6 ("Much of the time, dissenters benefit others, while conformists benefit themselves.").
403. See Rubenstein, supra note 115, at 1453-56 (advocating for court-appointed attorneys to argue against class action settlements).
404. Group Consensus, Individual Consent, supra note 13, at 22-25.
405. STUART HAMPSHIRE, JUSTICE Is CONFLICT 4-5 (2000).
406. Most scholars regard a social norm "as a rule governing an individual's behavior that is diffusely enforced by third parties other than state agents by means of social sanctions." Ellickson, supra note 234, at 35.
407. Relis, supra note 55, at 701.
408. Richard A. Nagareda, Autonomy, Peace, and Put Options in the Mass Tort Class Action, 115 HARV. L. REV. 747, 750 (2002).
409. Martin H. Redish & Nathan D. Larsen, Class Actions, Litigant Autonomy, and the Foundations of Procedural Due Process, 95 CAL. L. REV. 1573, 1574 (2007) ("Government imposed paternalism should be no less acceptable when it comes to the individual's ability to resort to the judicial process ⋯.").