A New Way Forward: A Response to Judge Weinstein
Elizabeth Chamblee Burch
University of Georgia Law School
August 12, 2009
Cardozo De Novo, Vol. 2009, p. 168, 2009
FSU College of Law, Public Law Research Paper No. 392
This short essay responds to Judge Jack Weinstein's essay, Preliminary Reflections on Administration of Complex Litigations, 2009 Cardozo De Novo 1. In so doing, it also provides a condensed version of my earlier article, Litigating Groups, which analyzes group dynamics within nonclass aggregation. By drawing on the literature of moral and political philosophy as well as social psychology, I contend that, in the face of hard cases, of instability and disunity, plaintiffs who have made promises and assurances to one another can invoke social norms of promise-keeping, social agglomeration, compatibility, and the desire for means-end coherence to achieve consensus, mitigate client-client conflicts, and re-tether their attorney to their needs. Thus, using groups to overcome the problems in nonclass aggregation not only makes sense from a group responsibility perspective, it may also harmonize with wealth maximization and individual autonomy goals.
Number of Pages in PDF File: 18
Keywords: aggregation, class actions, multi-district litigation, agency problems, social psychology, philosophy
JEL Classification: K10, K13Accepted Paper Series
Date posted: August 13, 2009 ; Last revised: October 21, 2009
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