A New Way Forward: A Response to Judge Weinstein

Abstract

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.

Keywords: aggregation, class actions, multi-district litigation, agency problems, social psychology, philosophy

JEL Classification: K10, K13