Private Claims, Aggregate Rights

41 Pages Posted: 26 Oct 2008 Last revised: 16 May 2017

Samuel Issacharoff

New York University School of Law

Date Written: November 24, 2008

Abstract

In an odd set of procedure opinions last Term, the Supreme Court found itself confronted with the inadequacy of the federal rules for dealing with the sprawling array of aggregate disputes that currently engage the courts. Taken on their own terms, the three cases - Sprint Communications Co., L.P. v APCC Services, Inc, Republic of the Philippines v Pimentel, and Taylor v Sturgell - broke little new ground. Even the topics presented - real parties in interest, required parties, and non-party preclusion - are hardly the stuff of future debates over potential Supreme Court nominees.

Nonetheless, each of these cases presented privately held legal claims that could not be litigated to resolution absent aggregation with the claims of other parties. In each case, the formal workings of the procedural system were inadequate to the task. This Article contrasts the formalism of federal court procedural doctrines to the flexibility of bankruptcy workouts for asbestos claims and court-supervised private settlements, as in the recent Vioxx settlement. In the latter examples, courts have used more flexible principles of equity to oversee privately-ordered mass settlements. The article explores both the benefits and the limits of such private ordering in order to highlight the limitations on court-administration of mass harm litigation.

Suggested Citation

Issacharoff, Samuel, Private Claims, Aggregate Rights (November 24, 2008). The Supreme Court Review, 2008; NYU School of Law, Public Law Research Paper No. 08-54; Harvard Public Law Working Paper No. 09-01. Available at SSRN: https://ssrn.com/abstract=1289505

Samuel Issacharoff (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States
212-998-6580 (Phone)
212-995-3150 (Fax)

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