Group Consensus, Individual Consent

Abstract:     
Despite a rise in the number of personal-injury and product-liability cases consolidated through multi-district litigation, a decline in class-certification motions, and several newsworthy nonclass settlements such as the $4.85 billion Vioxx settlement and estimated $700 million Zyprexa settlements, little ink has been spilled on nonclass aggregation’s unique issues. Sections 3.17 and 3.18 of the American Law Institute’s Principles of the Law of Aggregate Litigation are a noteworthy exception. This Article uses those principles as a lens for exploring thematic questions about the value of pluralism, group cohesion, governance, procedural justice, and legitimacy in nonclass aggregation.

Sections 3.17 and 3.18 make some scholars nervous because they substitute individual consent to a settlement for individual consent to a process. But the process itself plays a vital function; when process is coercive or consent is tainted those flaws undermine systemic legitimacy and can affect subsequent compliance with the outcome. To be sure, process should enable the enforcement of substantive laws. Yet, we can't achieve justice solely through maximizing welfare or ensuring that plaintiffs have free choice. Rather, process can enable plaintiffs to reason together about the right thing to do and give rise to moral obligations that help balance the uneasy union between the collective and the individual.

Number of Pages in PDF File: 36

Keywords: Nonclass Aggregation, Consent, Autonomy, Multidistrict Litigation, Mass Torts, Procedural Justice, Aggregate Settlements, Moral Philosophy

JEL Classification: K10, K13, K40

Accepted Paper Series