A New Way Forward: A Response to Judge Weinstein
Cardozo De Novo, Vol. 2009, p. 168, 2009
18 Pages Posted: 13 Aug 2009 Last revised: 30 Sep 2015
Date Written: August 12, 2009
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
Suggested Citation: Suggested Citation