The Continuum of Aggregation

Abstract

This essay, written for a conference marking the fiftieth anniversary of the multidistrict litigation statute, 28 U.S.C. § 1407, traces the evolution in thinking about aggregation, analyzes the forms of aggregate litigation — the class action, multidistrict litigation (MDL), and bankruptcy — and describes how while they were at first understood to be separate phenomena, they are now understood to comprise a continuum for resolving large-scale disputes. Mass litigation is like water: the cases will move to the form of litigation that is the most likely to lead to closure, be it the class action, a consolidation of individual cases under the auspices of the MDL, or bankruptcy. All forms of aggregation raise the same three problems: (i) horizontal equity between claimants, (ii) the agent-principal problem between claimants and their lawyers, and (iii) the defendants’ and the system’s need for global resolution of litigation.

Keywords: aggregation, MDL, bankruptcy, class action, mass torts, asbestos

JEL Classification: K40, K41