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Abstract:
At the core of the controversy over mass torts lies a fundamental question: what justifies collective litigation? Scholars considering this question make one of two arguments. They either argue that collective justice must be limited by a process-based right to participation based on autonomy values, or they argue that collective justice is justified by utilitarian values and dismiss participation altogether. This Article presents a third alternative: that the democratic nature of the jury trial validates "group typical" justice, a subset of collective justice. The Article re-envisions the trial as a democratic enterprise, rather than solely an atomistic one. An innovative procedure that illustrates this democratic justification is the bellwether trial. In a bellwether trial procedure a random sample of cases from a mass tort is tried to a jury and the results extrapolated to the remainder of the cases. The practice of bellwether trials prompts us to think more deeply about the political economy of modern adjudication and the possibility of adapting our eighteenth-century common law institutions to the needs of twenty-first century society.

Jury, Trials, Complex Litigation, Mass Torts

Abstract:
This Article describes the transfer of power to regulate tortfeasors from the legislature to private parties through the medium of the court system and proposes that instead of privatizing mass torts administration courts should humanize it. The federal courts are faced with large numbers of claims arising out of torts, civil rights violations, and consumer fraud. Federal judges, concerned about the transformation of their role from adjudicators to administrators, have applied various narrowing legal doctrines to avoid administering mass torts. Because courts have restricted procedures for resolving mass claims, litigants have resorted to private ordering through settlement. The alternative to private settlement is bureaucratic administration of complex litigation. There are legitimate reasons to fear this outcome, such as concerns about litigants becoming alienated, capture by special interests, and erroneous results. These same concerns about bureaucracy animated the debate over the rise of administrative agencies in the last century. But bureaucratic administration has its virtues and serves the broader democratic goal of access to justice. When judges avoid mass claim administration, they are not deferring to the legislature. Instead, they are ceding power to private actors. To replace private ordering, courts need a method for administering large numbers of claims that is both humanized and humanizing. Such a bureaucracy should be open to public scrutiny and understood as an important, sophisticated judicial function intended to realize the widely recognized values of the judicial system.

mass tort, courts, bureaucracy, complex litigation

Abstract:
This Article considers a question rarely addressed: what is the role of the lawyer in a manifestly unjust procedural regime? Many excellent studies have considered the role of the judge in unjust regimes, but the lawyer’s role has been largely ignored. This Article draws on two case studies: that of lawyers representing civil rights leaders during protests in Birmingham, Alabama in 1963 and that of lawyers representing detainees facing military commission proceedings in Guantánamo Bay, Cuba. These portraits illuminate the role of the lawyer in a procedurally unjust tribunal operating within a larger liberal legal regime such as our own.

The purpose of the Article is to paint a landscape of lawyer resistance to procedural injustice that can be used as a basis for further inquiry. The Article considers hard questions about lawyer participation in unjust tribunals such as whether lawyers who participate in unjust tribunals are complicit in injustice and what lawyers can do in the face of an unjust procedural regime. It presents a new way of understanding the forms of lawyer resistance to injustice. The Article demonstrates that complicity and resistance are not on opposite poles of human behavior within organizational systems. Rather, there is a dualistic interplay between complicity and resistance. Acts that appear to be resistance can be perceived as complicit, and acts that appear to be complicit can result in powerful forms of resistance. The Article also explores some questions raised by this analysis, such as what are the lawyer’s responsibilities to society and to his or her client and whether lawyers can know when a tribunal is so unjust as to merit resistance. It concludes by considering avenues for further research.

procedural justice, Guantanamo, military commissions, due process, ethics, professional responsibility, resistance, civil rights

Abstract:
This essay, written for the Tulane Law Review Symposium on the Problem of Multidistrict Litigation, argues that the focus of proceduralists on centralization as a solution to the problems posed by modern litigation is misplaced. It is time to refocus on the social value of the multiple centers of authority that jurisdictional redundancy permits. This essay presents the case for multi-centered litigation with particular focus on the potential uses of the Multidistrict Litigation Act to realize pluralist values. The descriptive claim put forward by the essay is that jurisdictional redundancy is imbedded in our federalist system and our preference for adversarial adjudication. The normative claim is that judges and scholars should take more seriously the social benefits of pluralism offered by jurisdictional redundancy. In furtherance of this goal, I suggest three factors that judges and policy-makers consider in determining the level of centralization appropriate in a given case: (i) the extent and nature of underlying substantive disagreement; (ii) the costs of inconsistency; and (iii) the role of political power in the litigation. The question judges, legislators and scholars should ask is not only how much pluralism our system of adjudication can tolerate, but also how much uniformity we should expect in a pluralist society.

Multidistrict Litigation, Jurisdiction, Federal Courts, Pluralism, Mass Torts

Abstract:
Class actions face a crisis of governance. The form of governance provided by Rule 23, governance by representative parties, is both vague in theory and ignored in practice. Instead, by a combination of procedural rules, judicial interpretation and common practice, the class is governed by a regime of attorney dictatorship with limited judicial oversight. This regime neither reflects the basic insight that the class and attorney do not have a traditional attorney-client relationship nor performs the task of transforming the inchoate collectivity of the class into an organization that protects and is responsive to the will of class members. This Article proposes an alternative regime of governance for 23(b)(3) small claims class actions that accomplishes both these things, based on four fundamental principles: mandatory disclosure of material information, an actively adversarial process, expertise of decision-makers and independence of decision-makers from influence and self-interest.

class actions, procedure, small claims

Abstract:
All clients are to some extent subject to their attorney's construction of their interests. This state of affairs reaches the extreme in the case of the class action because the class action permits masses of individual claims to be combined in one proceeding to promote efficiency and solve collective action problems. Class action scholars have long debated the role of class members without conclusion, but a conceptual understanding of the relationship between class counsel and the class is necessary for delineating the ethical duty of the lawyer to the class and its members. This essay argues that the class is neither an entity nor an aggregation but instead a phantom client, a creature of the attorney's imagination. Like any ghost, it requires recognition by others in order to exist. Rather than seeing the class client as merely an aggregation of members, we should recognize that the class is a fluid construct that includes members of the class, members of the public, and other constituencies. The essay explores the nature and consequences of this new understanding of the class as phantom client, through an analogy to the Russian novel Dead Souls by Nikolai Gogol. In this novel, a low level functionary named Chichikov engages in a fraudulent scheme to obtain a mortgage using as collateral serfs who have lately died but are still on the tax rolls and therefore technically exist as property. The novel gives us an important issue to consider: what potential exists for class counsel to act virtuously in imagining the phantom client? I propose that a public dialogue, skeptical of motivations, is part of the solution to the problem this exercise of attorney imagination poses, and present an example of such a dialogue in the context of cy pres distributions. Every class action lawyer should be required to ask him or herself: "Am I not, even slightly, somewhat of a Chichikov?"

Ethics, Class Actions, Law and Literature