Compared to What?: Ali Aggregation and the Changing Contours of Due Process and the Power of Lawyers
72 Pages Posted: 18 Nov 2010 Last revised: 7 Mar 2011
Date Written: November 17, 2010
A half century ago, class actions were controversial. Aggregation was seen as permissible only under exceptional circumstances that could justify departures from the obligations of individual voice, participation, and control of the then-dominant procedural framework. The adoption in 2009 by the American Law Institute of Principles of the Law of Aggregate Litigation mark the normalization of group-based adjudication as well as the embrace of group-based settlements through which lawyers and judges shape binding and preclusive judgments.
In those principles, the ALI offered two models of the “process due,” one focused on court-based obligations of public performance and the other imposing some regulation on out-of-court behavior yet relaxing relational constraints on lawyers by licensing them to enter into individual contracts pre-authorizing mass settlement negotiations. The ALI’s expansive attitudes contrast to another understanding of due process, exemplified by the 2008 Supreme Court decision of Taylor v. Sturgell. That ruling insisted that courts could not rely on the idea of “virtual” represenstation to use a judgment against one party to preclude another, even if the sequential plaintiffs shared the same lawyer. This essay explores the histories, differences, and benefits of these divergent approaches as they allocate authority among disputants, lawyers, judges, and give meaning to the phrase “due process of law.”
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