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Litigating Together: Social, Moral, And Legal Obligations, Elizabeth Chamblee Burch
Litigating Together: Social, Moral, And Legal Obligations, Elizabeth Chamblee Burch
Elizabeth Chamblee Burch
In a post-Class Action Fairness Act world, the modern mass-tort class action is disappearing. Indeed, multi-district litigation and private aggregation through contracts with plaintiffs’ law firms are the new mass-tort frontier. But something’s amiss with this “nonclass aggregation.” These new procedures involve a fundamentally different dynamic than class actions: plaintiffs have names, faces, and something deeply personal at stake. Their claims are independently economically viable, which gives them autonomy expectations about being able to control the course of their litigation. Yet, they participate in a familiar, collective effort to establish the defendant’s liability. They litigate from both a personal and …
Procedural Justice In Nonclass Aggregation, Elizabeth Chamblee Burch
Procedural Justice In Nonclass Aggregation, Elizabeth Chamblee Burch
Elizabeth Chamblee Burch
Nonclass aggregate litigation is risky for plaintiffs: it falls into the gray area between individual litigation and certified class actions. Although scholars have formulated procedural protections for both extremes, the unique danger and allure posed by nonclass aggregation has been undertheorized, leaving mass tort claimants with inadequate safeguards. When hallmark features of mass torts include attenuated attorney-client relationships, numerous litigants, and the demise of adversarial legalism, the attorney-client relationship itself becomes another bargaining chip in the exchange of rights. This Article takes the initial steps toward advancing a cohesive theory of procedural justice in nonclass aggregation by exposing the problem …
Unsettling Efficiency: When Non-Class Aggregation Of Mass Torts Creates Second-Class Settlements, Elizabeth Chamblee Burch
Unsettling Efficiency: When Non-Class Aggregation Of Mass Torts Creates Second-Class Settlements, Elizabeth Chamblee Burch
Elizabeth Chamblee Burch
Abstract: The potential for attorneys to collude in reaching a settlement agreement arises in any large-scale aggregation of mass torts. In the 1990s, attorneys settled seventy-four percent of the mass tort cases consolidated for transfer by the Judicial Panel on Multidistrict Litigation. Even though most mass tort litigation settles, the judicial system ensures the fairness and integrity of settlements only in the bankruptcy and class action contexts. Consequently, the fairness of the settlement can vary depending on how the judicial system aggregates the claims. Only thirty-nine percent of aggregated claims resulted in class action settlements. Two percent received bankruptcy protections. …