Group consensus, individual consent

George Washington Law Review

Volumn 79, Issue 2, 2011, Pages 506-541

  Burch, Elizabeth Chamblee ^a  

^a FLORIDA STATE UNIVERSITY   (United States)

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EID: 79956074966     PISSN: 00168076     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (257)

1. FED. R. CIV. P. 20.
2. FED. R. CIV. P. 42.
3. 28 U.S.C. § 1407 (2006).
4. PRINCIPLES OF THE LAW OF AGGREGATE LITIG. §§ 3.17-.18 (2010).
5. In re Zyprexa Prods. Liab. Litig., 424 F. Supp. 2d 488, 491 (E.D.N.Y. 2006)
6. Alex Berenson, Lilly Settles with 18,000 over Zyprexa, N.Y. TIMES, Jan. 5, 2007, at C1
7. OFFICIAL VIOXX SETTLEMENT, http://www.officialvioxxsettlement.com/ (last visited Nov. 14, 2010) (sponsored by the Vioxx MDL Plaintiffs' Steering Committee).
8. For the most recent empirical study of multidistrict litigation in comparison with class actions, see 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, 806 (2010) ("Though the number of [personal injury products liability] class action lawsuits has shifted very little, the percentage in which a party files a motion to certify a class that a court grants for litigation purposes appears to have shrunk markedly. and, while the shift in class certification was taking place, the [Judicial Panel on Multidistrict Litigation] began transferring products-liability litigations to single courts for consolidated management at a higher rate, and the number of products-liability consolidated cases expanded.").
9. MODEL RULES OF PROF'L CONDUCT R. 1.8(g) (2008) ("A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients . . . unless each client gives informed consent, in a writing signed by the client."). Every state has enacted some version of this aggregate settlement rule.
10. See PRINCIPLES OF THE LAW OF AGGREGATE LITIG. § 3.17 cmt. a (2010).
11. 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, 980 (2010).
12. See Elizabeth Chamblee Burch, Litigating Groups, 61 ALA. L. REV. 1, 8-9 (2009) [hereinafter Burch, Litigating Groups]
13. Samuel Issacharoff & Robert H. Klonoff, the Public Value of Settlement, 78 FORDHAM L. REV. 1177, 1185 (2010)
14. Charles Silver & Lynn A. Baker, Mass Lawsuits and the Aggregate Settlement Rule, 32 WAKE FOREST L. REV. 733, 767 (1997).
15. Empirical studies have shown that allowing people to participate in designing process ex ante (in this case, before a settlement offer) enhances their judgment about procedural fairness and the substantive outcome.
16. See E. ALLAN LIND & TOM R. TYLER, THE SOCIAL PSYCHOLOGY OF PROCEDURAL JUSTICE 102-03 (1988)
17. Elizabeth Chamblee Burch, Procedural Justice in Nonclass Aggregation, 44 WAKE FOREST L. REV. 1, 38 (2009) [hereinafter Burch, Procedural Justice]
18. Linda Musante et al., the Effects of Control on Perceived Fairness of Procedures and Outcomes, 19 J. EXPERIMENTAL SOC. PSYCHOL. 223, 237-38 (1983)
19. Donna Shestowsky, Procedural Preferences in Alternative Dispute Resolution: A Closer, Modern Look at an Old Idea, 10 PSYCHOL. PUB. POL'Y & L. 211, 233, 243 (2004).
20. PRINCIPLES OF THE LAW OF AGGREGATE LITIG. §§ 3.17(b)-(e), 3.18 (2010).
21. Burch, Procedural Justice, supra note 9, at 37-43.
22. See JACK B. WEINSTEIN, INDIVIDUAL JUSTICE IN MASS TORT LITIGATION 9 (1995) ("Many people, particularly those caught up in mass cases, feel alienated and dehumanized when dealing with our institutions. their participation in the system is too often, from their view, ineffective. they are items, things, rather than persons. . . . [T]hey are anonymous recipients of a form of justice they do not understand-players in a kind of lottery of awards and rejections from our system of law.").
23. Although I have introduced and explored these ideas in considerable detail elsewhere, my aim here is to assess how they fit within section 3.17(b)'s framework and alleviate the potential for attorney manipulation. I have written a series of articles addressing both the problems in nonclass aggregation and the solution of "litigating together." Elizabeth Chamblee Burch, Aggregation, Community, and the Line Between, 58 U. KAN. L. REV. 889 (2010) [hereinafter Burch, Aggregation, Community, and the Line Between] (considering the political theory underlying moral obligations, including how these obligations fit within the liberal and communitarian traditions)
24. Burch, Litigating Groups, supra note 8 (developing the theory of moral obligations between plaintiffs who litigate together)
25. Elizabeth Chamblee Burch, Litigating Together: Social, Moral, and Legal Obligations, 91 B.U. L. REV. (forthcoming 2011) [hereinafter Burch, Litigating Together], available at http://papers.ssrn.com/sol3/papers.cfm?abstract-id= 1577073 (translating the theory developed in "Litigating Groups" into practice)
26. Burch, Procedural Justice, supra note 9 (explaining the problems and risks presented by nonclass aggregation in procedural fairness terms).
27. For example, debates within the annual ALI meetings have led to several iterations of section 3.17(b).
28. John Rawls, for example, believes that we could be bound by both natural duties and voluntarily incurred obligations, but that those obligations must be construed against a backdrop of preexisting morality.
29. JOHN RAWLS, A THEORY OF JUSTICE 343 (1971) ("Acquiescence in, or even consent to, clearly unjust institutions does not give rise to obligations. It is generally agreed that extorted promises are void ab initio.")
30. see also MICHAEL J. SANDEL, LIBERALISM AND THE LIMITS OF JUSTICE 109-11 (2d ed. 1998).
31. See Anthony T. Kronman, Contract Law and Distributive Justice, 89 YALE L.J. 472, 478-79 (1980) (discussing the difficulty of determining when circumstances might render a promise involuntary).
32. See Richard A. Nagareda, Autonomy, Peace, and Put Options in the Mass Tort Class Action, 115 HARV. L. REV. 747, 750 (2002)
33. Martin H. Redish & Nathan D. Larsen, Class Actions, Litigant Autonomy, and the Foundations of Procedural Due Process, 95 CALIF. L. REV. 1573, 1574 (2007).
34. For information on the Vioxx settlement, including the estimated $4.85 billion payout, see OFFICIAL VIOXX SETTLEMENT, supra note 5.
35. Settlement Agreement at 5-6, Vioxx Prod. Liab. Litig., No. 05-01657 (E.D. La. Nov. 9, 2007), available at http://www.merck.com/newsroom/vioxx/pdf/ Settlement-Agreement.pdf. 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.
36. See Alex Berenson, Lawyers Seek to Alter Settlement over Vioxx, N.Y. TIMES, Dec. 21, 2007, at C4.
37. Settlement Agreement, supra note 19, at 41.
38. See Jef Feeley & Leslie Snadowsky, Merck Vioxx Judge Threatens to End Suit Consolidation, BLOOMBERG, Jan. 5, 2006
39. Cf. Mark A. Peterson & Molly Selvin, Mass Justice: The Limited and Unlimited Power of the Courts, 54 LAW & CONTEMP. PROBS. 227, 230 (1991) ("Faced with mass tort litigation, judges are not simply neutral arbiters; rather, they have strong personal incentives to speed the judicial process, save costs and labor, and reduce redundancy.")
40. Peter H. Schuck, the Role of Judges in Settling Complex Cases: The Agent Orange Example, 53 U. CHI. L. REV. 337, 361-62 (1986) ("Judges, like other people, do not like to invest a great deal in a project without receiving the anticipated return.").
41. See, e.g., Burch, Litigating Groups, supra note 8, at 36-37
42. Howard M. Erichson & Benjamin C. Zipursky, Consent Versus Closure, 96 CORNELL L. REV. 265, 301 (2011)
43. Richard A. Nagareda, Embedded Aggregation in Civil Litigation, 95 CORNELL L. REV. 1105, 1155-56 (2010).
44. THE GODFATHER (Paramount Pictures 1972).
45. See MICHAEL J. SANDEL, JUSTICE: WHAT'S THE RIGHT THING TO DO? 142-43 (2009).
46. See RAWLS, supra note 15, at 343-45
47. Erichson & Zipursky, supra note 22, at 301-11
48. cf. CHARLES FRIED, CONTRACT AS PROMISE 15-17, 97-98 (1981).
49. About Us, PLAINTIFFS VIEW, http://plaintiffsview.org/aboutus.html (last visited Nov. 14, 2010)
50. see also Al Pennington, My Story, http://plaintiffsview.org/MystoryAl. html (last visited Nov. 14, 2010).
51. RAWLS, supra note 15, at 345.
52. Id.
53. See Nagareda, supra note 22, at 1161 (pinpointing the timing of consent-when money was on the table for attorneys and their clients-as the principal problem with the Vioxx deal).
54. PRINCIPLES OF THE LAW OF AGGREGATE LITIG. § 3.17(b) (2010).
55. RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 122 cmts. c(i), d (2000) (discussing the role of client sophistication in informed consent)
56. MODEL RULES OF PROF'L CONDUCT R. 1.7 cmt. 22 (1983).
57. PRINCIPLES OF THE LAW OF AGGREGATE LITIG. § 3.17(c) (Discussion Draft No. 2, 2007) ("[E]ach claimant may consent, in a writing signed by each claimant, to such collective decisionmaking either as part of the lawyer or law firm's retainer agreement or at any other point during the course of the litigation.")
58. PRINCIPLES OF THE LAW OF AGGREGATE LITIG. § 3.17(c) (Preliminary Draft No. 5, 2008) (same).
59. PRINCIPLES OF THE LAW OF AGGREGATE LITIG. § 3.17(b)(2) (2010).
60. Id. § 3.17 cmt. d
61. see also Burch, Litigating Groups, supra note 8, at 39-40.
62. 11 U.S.C. § 524(g) (2006)
63. PRINCIPLES OF THE LAW OF AGGREGATE LITIG. § 3.17 cmt. c (2010).
64. RICHARD A. NAGAREDA, MASS TORTS IN A WORLD OF SETTLEMENT 169 (2007).
65. Id. at 170-73.
66. Lester Brickman, Ethical Issues in Asbestos Litigation, 33 HOFSTRA L. REV. 833, 866 (2005).
67. NAGAREDA, supra note 36, at 172-73.
68. WEINSTEIN, supra note 12, at 49-50.
69. See 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, 661-62 (2008)
70. Tamara Relis, "It's Not About the Money!": A theory on Misconceptions of the Plaintiffs' Litigation Aims, 68 U. PITT L. REV. 341, 363 (2006) ("Plaintiffs' articulated litigation aims were largely composed of extra-legal objectives of principle, with 41% not mentioning monetary compensation at all, 35% saying it was of secondary importance, 18% describing money as their primary objective in suing, and only one person (6%) saying it was money alone.").
71. Hadfield, supra note 41, at 649.
72. Relis, supra note 41, at 341.
73. Hadfield, supra note 41, at 662-63
74. see also WEINSTEIN, supra note 12, at 8-9.
75. Hadfield, supra note 41, at 672.
76. As I have discussed elsewhere, this suggests that when plaintiffs want extralegal relief, we should consider a fee-shifting statute akin to those in civil rights legislation. I thank Richard Nagareda for suggesting this to me. 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)
77. Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988(b) (2006)
78. Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(k) (2006)
79. Americans with Disabilities Act of 1990, 42 U.S.C. § 12205 (2006).
80. 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)
81. Government in the Sunshine Act, 5 U.S.C. § 552b(i) (2006)
82. Equal Access to Justice Act, 28 U.S.C. § 2412(b), (d)(1)(A) (2006)
83. Clean Air Act, 42 U.S.C. § 7607(f) (2006).
84. See Deborah L. Rhode, Class Conflicts in Class Actions, 34 STAN. L. REV. 1183, 1183 (1982) ("A fundamental premise of American adjudicative structures is that clients, not their counsel, define litigation objectives."). the right to sue in tort is a property interest protected by the Due Process Clause. As defined by Karl Llewellyn, "rights" are "statements of likelihood that in a given situation a certain type of court action loomed in the offing.
85. Karl N. Llewellyn, A Realistic Jurisprudence-the Next Step, 30 COLUM. L. REV. 431, 448 (1930).
86. For more information on the economic disjunction, see Burch, Litigating Together, supra note 13.
87. Llewellyn, supra note 47, at 448. I realize this statement is controversial in many circles. My point is to underscore the necessity of process in enforcing legislatively defined substantive rights.
88. Id.
89. see also David Marcus, Some Realism About Mass Torts, 75 U. CHI. L. REV. 1949, 1979 (2008) ("Guided by Llewellyn's insight, I maintain that a rigid boundary between substance and procedure for the purpose of identifying the components of a right to sue does not exist if a right to sue is that which entitles its holder to attempt to require her adversary to conform to a peparticular duty. Defined accordingly, a right to sue is abstract and meaningless in any real-world sense if no procedural avenue exists for its attempted vindication.").
90. See Burch, Litigating Together, supra note 13 (manuscript at 8).
91. Id.
92. Silver & Baker, supra note 8, at 755-67.
93. See, e.g., PRINCIPLES OF THE LAW OF AGGREGATE LITIG. § 3.19 (Discussion Draft 2006)
94. PRINCIPLES OF THE LAW OF AGGREGATE LITIG. § 3.19 (Tentative Draft No. 1, 2008).
95. See, e.g., PRINCIPLES OF THE LAW OF AGGREGATE LITIG. § 3.17(b), (d) (Discussion Draft 2006).
96. PRINCIPLES OF THE LAW OF AGGREGATE LITIG. § 3.17(b)(1)-(2), (b)(4), (d)-(f) (2010).
97. SANDEL, supra note 24, at 144-45.
98. See RAWLS, supra note 15, at 178, 333-50 (noting the need for altruism and reciprocity, but observing that "affection and ties of sentiment" are "not demanded as a matter of justice").
99. See generally ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA (1974).
100. See ALASDAIR MACINTYRE, AFTER VIRTUE 220 (2d ed. 1984)
101. SANDEL, supra note 24, at 223-25
102. CHARLES TAYLOR, SOURCES OF THE SELF 36 (1989)
103. MICHAEL WALZER, SPHERES OF JUSTICE 64 (1983). Although these scholars have become known as communitarians, most dislike that label. Sandel, in particular, sees himself as reviving civic republicanism.
104. See, e.g., MICHAEL J. SANDEL, DEMOCRACY'S DISCONTENT: AMERICA IN SEARCH OF A PUBLIC PHILOSOPHY (1996).
105. MACINTYRE, supra note 59, at 216 (internal quotation marks omitted).
106. SANDEL, supra note 24, at 241
107. see also RONALD DWORKIN, LAW'S EMPIRE 195-202 (1986). Dworkin's larger project aims to join liberalism and community by arguing that liberalism is the best way to understand our political community.
108. See generally Ronald Dworkin, Liberal Community, 77 CALIF. L. REV. 479 (1989).
109. See Geoffrey C. Hazard, Jr., Communitarian Ethics and Legal Justification, 59 U. COLO. L. REV. 721, 737-38 (1988)
110. Philip Selznick, the Idea of Communitarian Morality, 75 CALIF. L. REV. 445, 449 (1987) ("[A community] is a comprehensive framework for social life. . . . [A]lthough in a genuine community there must be a minimum of integration, including shared symbolic experience, we also expect to find relatively self-regulating activities, groups, and institutions. . . the individual is bound into a community by way of participation in more limited, more person-centered groups." (emphasis omitted)).
111. See WEINSTEIN, supra note 12, at 47.
112. See, e.g., Robert Axelrod & William D. Hamilton, the Evolution of Cooperation, 211 SCIENCE 1390 (1981)
113. Kelly S. Bouras & S. S. Komorita, Group Discussion and Cooperation in Social Dilemmas, 22 PERSONALITY & SOC. PSYCHOL. BULL. 1144, 1145 (1996)
114. Robert Boyd & Peter J. Richerson, Cultural Transmission and the Evolution of Cooperative Behavior, 10 HUM. ECOLOGY 325 (1982)
115. Ernst Fehr et al., Reciprocity as a Contract Enforcement Device: Experimental Evidence, 65 ECONOMETRICA 833 (1997)
116. Ernst Fehr et al., Strong Reciprocity, Human Cooperation and the Enforcement of Social Norms, 13 HUM. NATURE 1, 20 (2002)
117. Ernst Fehr & Klaus M. Schmidt, A theory of Fairness, Competition, and Cooperation, 114 Q.J. ECON. 817, 818 (1999)
118. S. S. Komorita et al., Reciprocity and Cooperation in Social Dilemmas, 35 J. CONFLICT RESOL. 494, 495 (1991)
119. Mark Van Vugt & Claire M. Hart, Social Identity as Social Glue: The Origins of Group Loyalty, 86 J. PERSONALITY & SOC. PSYCHOL. 585, 586 (2004).
120. Philip Hager, State Farm to Pay Women $157 Million for Job Bias, L.A. TIMES, Apr. 29, 1992, at A1
121. Carol Ness, Largest Sex Bias Suit Ever Is Settled: State Farm to Pay $157 Million to California Women for Refusing to Hire them as Agents, S.F. EXAM'R, Apr. 28, 1992, at A1. I thank Judith Resnik for pointing this out to me.
122. Hager, supra note 65.
123. Jack Hitt, Toxic Dreams: A California Town Finds Meaning in an Acid Pit, HARPER'S MAG., July 1995, at 57, 61-62. the hazardous waste cleanup is ongoing.
124. For the latest information, see DEP'T OF TOXIC SUBSTANCES CONTROL, CAL. ENVTL. PROT. AGENCY, MARCH 2010 FACT SHEET: PROGRESS UPDATE ON ZONE 4 PERCHLORATE CLEANUP, available at http://www. dtsc.ca.gov/SiteCleanup/Projects/ upload/Stringfellow-FS-Update-0329100.pdf. I thank Richard Marcus for pointing this out to me.
125. Hitt, supra note 67, at 58.
126. Id. at 57-58.
127. Id. at 61.
128. Id.
129. See id. Most people tend to follow norms of distributive fairness.
130. See Rachel T.A. Croson, Information in Ultimatum Games: An Experimental Study, 30 J. ECON. BEHAV. & ORG. 197, 197-98 (1996)
131. 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, 148-50 (David De Cremer et al. eds., 2006)
132. Madan M. Pillutla & J. Keith Murnighan, Fairness in Bargaining, 16 SOC. JUST. RES. 241, 241-42 (2003).
133. See DWORKIN, supra note 61, at 195-202.
134. For a detailed treatment of what makes a "group" in aggregate litigation and when obligations attach, see Burch, Litigating Groups, supra note 8, at 38-47.
135. I have explored these basic ideas in more detail elsewhere.
136. See id.
137. Burch, Litigating Together, supra note 13 (manuscript at 28-29).
138. See DWORKIN, supra note 61, at 197 ("the connection we recognize between communal obligation and choice is much more complex and more a matter of degree that varies from one form of communal association to another.").
139. To be clear, my claim is that these communal obligations morally, not legally, bind plaintiffs. Thus, communal obligations would not be subject to judicial enforcement.
140. This differs from an individualistic account in that cooperation is not governed solely by self-interest. One might, however, reconcile it with Rawls's sentimental conception of community. In this sense, community is partially contained within the feelings, emotions, and sentiments of those who are pursuing some end together.
141. See RAWLS, supra note 15, at 177-78
142. SANDEL, supra note 15, at 148-49, 173 ("For a society to be a community in this strong sense, community must be constitutive of the shared self-understandings of the participants and embodied in their institutional arrangements, not simply an attribute of certain of the participants' plans of life.").
143. See supra note 64.
144. Even if plaintiffs do not develop other-regarding preferences, they may still frame their reasoning as an appeal to the good of the group. As James Fearon elaborates, [E]ven majorities commonly justify their actions in terms of the general public good rather than the narrow interest of the voting majority. . . . I would conjecture that often what is most important is the desire not to appear selfish or self-interested. there is something embarrassing or even shameful about statements like "We don't care what anyone else gets; we just want more for ourselves.
145. James D. Fearon, Deliberation as Discussion, in DELIBERATIVE DEMOCRACY 44, 54 (Jon Elster ed., 1998) (emphasis omitted).
146. See Burch, Litigating Groups, supra note 8, at 43-44.
147. See Burch, Procedural Justice, supra note 9, at 48-49.
148. Voice and participation opportunities are critical components of procedural justice.
149. See TOM R. TYLER, WHY PEOPLE OBEY THE LAW 133 (2003)
150. E. Allen Lind et al., Voice, Control & Procedural Justice: Instrumental and Noninstrumental Concerns in Fairness Judgments, 59 J. PER SONALITY & SOC. PSYCHOL. 952 (1990)
151. Judith Resnik et al., Individuals Within the Aggregate: Relationships, Representation, and Fees, 71 N.Y.U. L. REV. 296, 306 (1996) ("[T]ort litigants share judicial and legal theorists' beliefs that process matters.").
152. WEINSTEIN, supra note 12, at 13.
153. Burch, Procedural Justice, supra note 9, at 19.
154. This lessens the potential that an agreement would not express true client preferences as Professor Moore suggests might occur if the agreement is signed early in the litigation or solely at the behest of the attorney. 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, 415 (2008).
155. See Eric A. Posner, the Regulation of Groups: The Influence of Legal and Nonlegal Sanctions on Collective Action, 63 U. CHI. L. REV. 133, 137 (1996). (Pubitemid 126408713)
156. See generally JOHN S. DRYZEK, DELIBERATIVE DEMOCRACY AND BEYOND: LIBERALS, CRITICS, CONTESTATIONS 1 (2000)
157. Fearon, supra note 80, at 45-46.
158. It also makes it possible for the defendant to define the category of claimants in a way that guarantees that a settlement offer will obtain the requisite supermajority. This means that a majority of claimants with weaker legal claims, when lumped together with stronger claims, could cram the settlement down on those with serious injuries and fewer causation problems.
159. See Moore, supra note 86, at 410-11. But if plaintiffs categorize themselves and engineer their own agreement, they might decide on weighted voting, where those with stronger claims have a vote that counts as more than a single vote.
160. See Burch, Litigating Together, supra note 13 (manuscript at 25-28) (discussing the role of a "special officer" as a third-party neutral).
161. PRINCIPLES OF THE LAW OF AGGREGATE LITIG. § 1.05 cmt. k (2010).
162. As Erin O'Hara and Douglas Yarn explain: [P]eople often value apology more than monetary compensation. Ford and Firestone had to broadcast a videotaped apology on national television to reach a settlement with a [woman] paralyzed by an accident caused by a roll-over of a Ford Explorer with defective Firestone tires. In the face of several attractive monetary offers, Paula Jones demanded-but never received-an apology from President Clinton as a condition of settlement. Erin Ann O'Hara & Douglas Yarn, On Apology and Consilience, 77 WASH. L. REV. 1121, 1125 (2002) (citation omitted).
163. See supra notes 18-26 and accompanying text.
164. See supra notes 49-50 and accompanying text.
165. But see Mathew D. McCubbins & Daniel B. Rodriguez, When Does Deliberating Improve Decisionmaking?, 15 J. CONTEMP. LEGAL ISSUES 9, 12 (2006) (arguing that expertise systems provide a better result than using deliberation "as a palliative to decisionmaking").
166. See John S. Dryzek, Legitimacy and Economy in Deliberative Democracy, 29 POL. THEORY 651, 651-52 (2001) ("[O]utcomes are legitimate to the extent they receive reflective assent through participation in authentic deliberation by all those subject to the decision in question.")
167. Lawrence B. Solum, Procedural Justice, 78 S. CAL. L. REV. 181, 277-82 (2002)
168. Axel Tschentscher, Deliberation as a Discursive Feature of Contemporary theories of Democracy: Comment on John S. Dryzek, in DELIBERATION AND DECISION: ECONOMICS, CONSTITUTIONAL THEORY AND DELIBERATIVE DEMOCRACY 72, 72-73 (Anne Van Aaken et al. eds., 2004)
169. Cf. JEREMY WALDRON, LAW AND DISAGREEMENT 70 (1999) (arguing that deliberations are the task of modern legislatures and play a role in the legitimacy of legislation as a source of law).
170. See MICHAEL E. BRATMAN, STRUCTURES OF AGENCY 291-95 (2007) ("Demands for coherence and consistency on the intentions of each of the individuals then require each to seek consistency and coherence in the overall package of subplans of both. . . . these pressures toward meshing subplans will help shape the reasoning and bargaining of each in the pursuit of the shared activity.").
171. See WEINSTEIN, supra note 12, at 47
172. Samuel Issacharoff, Democracy and Collective Decision Making, 6 INT'L J. CONST. L. 231, 256-57 (2008).
173. WEINSTEIN, supra note 12, at 47.
174. See generally Resnik et al., supra note 83, at 381 ("If judges and lawyers are rational actors, however, they have strong incentives to conceive of litigation as multipurposed, to believe that some fundamental form of governance is enacted by adjudicatory modes of dispute inresolution, and therefore to be wary of principal-agent analogies that are not enriched with relationship, voice, expression, and human dignity.").
175. See Howard M. Erichson, Doing Good, Doing Well, 57 VAND. L. REV. 2087, 2097-98 (2004) (quoting interviews with Minnesota tobacco lawyers and activists on the importance of publically disclosing the tobacco discovery documents).
176. See Leigh Thompson et al., Cohesion and Respect: An Examination of Group Decision Making in Social and Escalation Dilemmas, 34 J. EXPERIMENTAL SOC. PSYCHOL. 289, 291-92 (1998).
177. See generally Fearon, supra note 80, at 53-54, 60-63
178. supra note 64. Groups who discuss a dilemma with each other are substantially more likely to cooperate to reach an acceptable outcome.
179. See Peter Kollock, Social Dilemmas: The Anatomy of Cooperation, 24 ANN. REV. SOC. 183, 194 (1998)
180. Wim B. G. Liebrand, the Effect of Social Motives, Communication and Group Size on Behaviour in an N-Person Multi-Stage Mixed-Motive Game, 14 EUR. J. SOC. PSYCHOL. 239, 251-52 (1984). Plus, discussion increases cooperation by eliciting social norms.
181. See Robyn M. Dawes et al., Not Me or thee but We: The Importance of Group Identity in Eliciting Cooperation in Dilemma Situations, 68 ACTA PSYCHOLOGICA 83 (1988).
182. See generally BRATMAN, supra note 97, at 303.
183. See SANDEL, supra note 24, at 260-63.
184. See id. at 261.
185. See id.
186. On the benefits for diversity in decisionmaking, and hence the need for discussion not only among categories but also across them, see generally SCOTT E. PAGE, THE DIFFERENCE: HOW THE POWER OF DIVERSITY CREATES BETTER GROUPS, FIRMS, SCHOOLS, AND SOCIETIES (2007)
187. HOWARD RHEINGOLD, SMART MOBS: THE NEXT SOCIAL REVOLUTION (2002)
188. CASS R. SUNSTEIN, WHY SOCIETIES NEED DISSENT (2003)
189. JAMES SUROWIECKI, THE WISDOM OF CROWDS (2004).
190. My interpretation of section 3.17 has strands of both pluralism and consensus and relies sometimes on communitarianism and other times on the need for diversity (particularly as an antidote to group polarization). For one perspective on reconciling the two general perspectives on some points, see John S. Dryzek & Simon Niemeyer, Reconciling Pluralism and Consensus as Political Ideals, 50 AM. J. POL. SCI. 634 (2006).
191. Even so, how we tolerate and encourage pluralism within the coherent whole raises a related question about when and whether plaintiffs who fundamentally disagree with the litigation's eventual course should be permitted to exit. Although I find the question worth considering further, exit's wide-ranging impact on preclusion doctrines, the All-Writs Act, and abstention doctrines require me to leave the topic for another day.
192. See Fearon, supra note 80, at 55-58.
193. Id. at 56-58.
194. Some political theorists who advocate deliberative democracy disfavor this emphasis on voting and would promote collective choice through reasoned agreement instead.
195. See, e.g., DRYZEK, supra note 88, at 47. To others, like Joshua Cohen, voting is a second-best solution but an important failsafe when consensus proves impossible.
196. Joshua Cohen, Deliberation and Democratic Legitimacy, in CONTEMPORARY POLITICAL PHILOSOPHY: AN ANTHOLOGY 159, 163 (Robert E. Goodin & Philip Pettit eds., 2d ed. 2006) ("Even under ideal conditions there is no promise that consensual reasons will be forthcoming. If they are not, then deliberation concludes with voting, subject to some form of majority rule.").
197. LIND & TYLER, supra note 9, at 81-83, 210-11.
198. See supra note 67.
199. PRINCIPLES OF THE LAW OF AGGREGATE LITIG. § 3.17(b) cmt. c(2) (2010)
200. see also id. § 3.17(b)(1) ("Claimants may exercise their collective decisionmaking power to approve a settlement through the selection of an independent agent other than counsel.").
201. See Solum, supra note 96, at 279-80.
202. Even though plaintiffs will have already filed their complaints, Rule 15 permits liberal amendments "when justice so requires." FED. R. CIV. P. 15(a). For the interested reader, I have elaborated on these ideas of using representatives, special officers, regional meetings, and modern media elsewhere.
203. See, e.g., Burch, Aggregation, Community, and the Line Between, supra note 13, at 899-902 (discussing technology)
204. Burch, Litigating Together, supra note 13. I have also noted that if the categories of claimants truly want to pursue disparate and fundamentally incompatible ends, then we may need to consider either certifying a Rule 23(b)(2) class if injunctive or declaratory judgments would subject the defendant to incompatible judgments or disaggregating into smaller litigation groups.
205. See id. (manuscript at 22-23).
206. See, e.g., Burch, Aggregation, Community, and the Line Between, supra note 13, at 899-900
207. Robert H. Klonoff et al., Making Class Actions Work: The Untapped Potential of the Internet, 69 U. PITT. L. REV. 727, 763-64 (2008).
208. See, e.g., DWORKIN, supra note 61
209. JAMES S. FISHKIN, DEMOCRACY AND DELIBERATION: NEW DIRECTIONS FOR DEMOCRATIC REFORM (1991)
210. PAGE, supra note 107
211. RAWLS, supra note 15, at 358-59
212. RHEINGOLD, supra note 107
213. SUROWIECKI, supra note 107
214. Joshua Cohen, Democracy and Liberty, in DELIBERATIVE DEMOCRACY (Jon Elster ed., 1998)
215. Dryzek, supra note 96, at 652
216. David M. Estlund, Who's Afraid of Deliberative Democracy? On the Strategic/Deliberative Dichotomy in Recent Constitutional Jurisprudence, 71 TEX. L. REV. 1437 (1993)
217. Solum, supra note 96, at 277-82
218. Jeremy Waldron, the Wisdom of the Multitude: Some Reflections on Book 3, Chapter 11 of Aristotle's Politics, 23 POL. THEORY 563 (1995).
219. See Cass R. Sunstein, Deliberative Trouble? Why Groups Go to Extremes, 110 YALE L.J. 71, 73 (2000) (describing the ideal of "deliberative democracy" but arguing that such an ideal is not empirically confirmed).
220. See Issacharoff, supra note 98, at 257-58 (describing the challenges of collective decisionmaking as well as Kenneth Arrow's work on cycling)
221. see also, e.g., KENNETH J. ARROW, SOCIAL CHOICE AND INDIVIDUAL VALUES (2d ed. 1970)
222. McCubbins & Rodriguez, supra note 95.
223. See Sunstein, supra note 120, at 74-75. As Sunstein explains, the Internet may serve "as a breeding ground for extremism" if the discussion group allows participants to post anonymously.
224. Id. at 101.
225. See SUNSTEIN, supra note 107, at 134 (observing that depolarization occurs where equally opposed subgroups are put together and that "the group judgment will move toward the middle").
226. See CASS R. SUNSTEIN, INFOTOPIA: HOW MANY MINDS PRODUCE KNOWLEDGE 210-11 (2006).
227. See Erichson, supra note 7, at 982-83.
228. This inquiry is analogous to procedural unconscionability in contract law.
229. See U.C.C. § 2-302 (2005)
230. RESTATEMENT (SECOND) OF CONTRACTS § 208 (1981)
231. Ingle v. Circuit City Stores, Inc., 328 F.3D 1165, 1170-73 (9th Cir. 2003) (distinguishing between procedural and substantive unconscionability and suggesting a sliding-scale approach)
232. Harris v. Green Tree Fin. Corp., 183 F.3D 173, 181 (3D Cir. 1999) ("Procedural unconscionability pertains to the process by which an agreement is reached and the form of an agreement, including the use therein of fine print and convoluted or unclear language.").
233. See In re Combustion Eng'g, 391 F.3D 190, 239 (3D Cir. 2004) (referring to the Bankruptcy Code's policy of "equality of distribution among creditors" and requiring "similar treatment to similarly situated claims"). This inquiry is somewhat akin to substantive unconscionability in contract doctrine, that is, the notion that certain contractual terms are so one-sided under the circumstances that they "shock the conscience.
234. Ingle, 328 F.3D at 1172
235. see also Harris, 183 F.3D at 181 (explaining that "[s]ubstantive unconscionability refers to contractual terms that are unreasonably or grossly favorable to one side").
236. See SANDEL, supra note 15, at 106.
237. Id. at 112
238. see also PRINCIPLES OF THE LAW OF AGGREGATE LITIG. § 3.18(a) (2010)
239. RAWLS, supra note 15, at 345-47.
240. See SANDEL, supra note 15, at 106-07.
241. PRINCIPLES OF THE LAW OF AGGREGATE LITIG. § 3.17(e) (2010) (incorporated by reference in § 3.18(a))
242. see infra note 138.
243. Burch, Procedural Justice, supra note 9, at 35-37.
244. the ALI 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) (incorporated by reference in § 3.18(a)).
245. RAWLS, supra note 15, at 85-86.
246. Id. at 86.
247. Id.
248. PRINCIPLES OF THE LAW OF AGGREGATE LITIG. § 3.17(f) (2010).
249. Section 3.18 refers back to section 3.17(e), which makes "whether the claimants are treated equitably (relative to each other) based on their facts and circumstances" a substantive consideration. Id. § 3.17(e). I am not sure that this interpersonal concern is necessarily a substantive one. For example, if one of the Drug-D claimants feels that she has a good claim (strong causation evidence and suffered a heart attack) and that this claim is worth far more than what the defendant offers, that is a matter of alleged substantive unfairness. If, on the other hand, she has to take the offer because her attorney forces her to sign the settlement at gunpoint, then that is a matter of procedural unfairness. But if she acknowledges that she receives the going market rate for a heart attack (assuming it could be established), but objects that others are receiving more for similar injuries, it is not obvious to me whether this is a complaint about substantive or procedural unfairness.
250. See William B. Rubenstein, the Concept of Equality in Civil Procedure, 23 CARDOZO L. REV. 1865, 1893-97 (2002) (explaining the problems created when "like cases" are not "treated alike").
251. For one view of how equality and community might intertwine, see DWORKIN, supra note 61, at 200-01 ("[Communities] may be structured, even hierarchical, in the way a family is, but the structure and hierarchy must reflect the group's assumption that its roles and rules are equally in the interests of all, that no one's life is more important than anyone else's.").
252. SANDEL, supra note 15, at 106 (emphasis omitted).
253. See, e.g., FRIED, supra note 25, at 104-06
254. Alan Schwartz, A Reexamination of Nonsubstantive Unconscionability, 63 VA. L. REV. 1053, 1071-76 (1977).
255. Seana Valentine Shiffrin, Paternalism, Unconscionability Doctrine, and Accommodation, 29 PHIL. & PUB. AFF. 205, 224 (2000).
256. See id.
257. See Samuel Bowles, Endogenous Preferences: The Cultural Consequences of Markets and Other Economic Institutions, 36 J. ECON. LITERATURE 75 (1998).