Competing Values: Preserving Litigant Autonomy in an Age of Collective Redress

Abstract

In one of the most famous law review articles ever written, The Role of the Judge in Public Law Litigation, Professor Abram Chayes in 1976 described a paradigm shift away from bipolar traditional litigation to a new model of public law litigation. Embedded in the traditional model was a deeply-held notion of litigant autonomy – that is, a fundamental right of any person to appear in his individual capacity to advocate for remediation of alleged wrongdoing. The concept of litigant autonomy reflected certain process and dignity ideals, including the psychological and cathartic values in individual representation.

In his analysis of a changed litigation landscape, Professor Chayes concluded: “...from the perspective of the traditional model, the [new public law] proceeding is recognizable as a lawsuit only because it takes place in a courtroom before an official called a judge.” Judge Jack Weinstein’s judicial philosophy and class action jurisprudence were forged during this period, and he readily characterized mass tort cases as a new form of public law litigation. There is perhaps no judge more identified with the aggregate litigation movement of the late twentieth century and, in turn, Judge Weinstein’s landmark efforts have inspired generations of acolytes who have subscribed to and implemented his views on aggregate claim resolution.

Throughout the 1980s and 1990s judicial experiments addressing the efficient resolution of mass tort litigation were undergirded by a jurisprudential debate pitting collective redress mechanisms against arguments for litigant autonomy. By the end of the twentieth century, the proponents of aggregate claim resolution had prevailed over competing theories of litigant autonomy. However, arguments centered on litigant autonomy have endured and received renewed advocacy in era of twenty-first century of informal aggregation techniques.

This article suggests that Judge Weinstein’s jurisprudential odyssey illuminates the interesting tension between litigant autonomy and collective redress. Ironically, the judge so closely identified with compassionate treatment of individuals became the leading advocate for collective redress. The article discusses how, in the United States, concepts of collective redress and aggregate settlements prevailed over notions of litigant autonomy. In light of this, the article questions whether it is worth revisiting this debate and the values embraced by litigant autonomy, which values largely have been displaced by the triumph of aggregate claim resolution.

The article concludes with reflections on the current European movement for collective redress mechanisms. EU countries have seriously considered the debate between collective redress and litigant autonomy, and have concluded – unlike the United States – that any emerging EU collective redress model must preserve the deeply-held European civil law notion of the fundamental right to litigant autonomy. The EU experience suggests a compromise means for implementing collective redress regimes while preserving this fundamental right.

This is a draft paper as part of the 20th Annual Clifford Symposium on Tort Law and Social Policy, In Honor of Judge Jack Weinstein: Judge Jack Weinstein's Impact on Civil Justice in America

Keywords: Aggregate litigation, class action litigation, Rule 23, litigant autonomy, Judge Jack Weinstein, ALI Principles of the Law of Aggregate Litigation, EU Commission Principles of Collective Redress, opt-in, Martin Redish, due process, quasi-class actions, collective redress