Calibrating Participation: Reflections on Procedure versus Procedural Justice

Abstract

When the same defendant harms many people in similar ways, a plaintiff’s ability to meaningfully participate in litigating her rights is curtailed dramatically. Now it is the rare plaintiff who sues a nationwide (or worldwide) corporation in her home jurisdiction and is able to litigate and resolve her claims there. Although several factors play a role in this phenomenon, including tort reform efforts like the Class Action Fairness Act, one of the most significant factors is Supreme Court jurisprudence over the last ten years in the areas of arbitration, personal jurisdiction, pleading, and class actions. Of course, recent cases aren’t the first evidence of a shift away from procedural justice norms. Commentators have long lamented the “vanishing trial” and the rise of summary judgment, often citing those trends as evidence of “merit-phobia,” “death by a thousand procedural cuts,” and a general demolition of both democratic tradition and the civil justice system’s credibility.

At the heart of these concerns lies a persistent theme: the need for citizen access to and participation in convenient dispute resolution. Other scholars writing about arbitration, closing the courthouse doors, and the democratizing function of trials have already tackled many facets of this theme. Accordingly, this Essay, written for the annual Clifford Symposium in Tort Law and Social Policy, hones in on a slightly different aspect: securing and curtailing participation rights through both aggregating and pleading. It builds a framework for considering participation rights in aggregate litigation based on underlying substantive rights, group dynamics, and empirical studies on procedural justice.

Keywords: procedural justice, participation, issue classes, Rule 23(c)(4), Twombly, Iqbal, multidistrict litigation, class actions, notice, Rule 23(b)(2), Taylor v. Sturgell, Smith v. Bayer

JEL Classification: K13, K41