Academic

Burch on Litigating Groups

By Lawrence Solum

Elizabeth Chamblee Burch (Florida State University - College of Law) has posted Litigating Groups on SSRN. Here is the abstract:

Large-scale litigation, such as the Vioxx, Zyprexa, and asbestos cases, breeds conflict. Conflicts arise between attorneys and their clients (agency problems), plaintiffs and other plaintiffs (group problems), and plaintiffs' attorneys and other plaintiffs' attorneys (competition problems). Although these cases cannot be certified as class actions, they still proceed en masse to achieve economies of scale and present a credible threat to defendants. Assuming that coordinating and consolidating large-scale litigation is systemically desirable, this Article explores a new approach to removing the group and agency problems that increase aggregate litigation's costs and undermine its normative goals such as fairness, compensation, and deterrence.

Unlike traditional scholarship that emphasizes individual autonomy or welfare maximization, this Article borrows from the literature of moral and political philosophy as well as social psychology to analyze group dynamics within nonclass aggregation. It requires us to view plaintiffs within large-scale litigation as a community of sorts and to recognize that sometimes litigants incur obligations simply by virtue of being a group member, whether chosen or not and whether welfare maximizing or not. Moreover, empirical studies demonstrate that once people consider themselves part of a group, they exhibit other-regarding preferences-trust, reciprocity, and altruism-toward other members. Cohesive group members are more likely to cooperate with one another and care about the collective outcome, and less likely to exit the group when doing so benefits the individual rather than the group. 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 restore the tether between clients and their attorney. 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.

And from the paper:

One might also adopt a softer form of obligation, one that is grounded in collective planning and anchors commitments through norms of stability. Planning a group activity demands some stability, frequently garnered through social pressure. Without stability, a group?s members are less reliable, externalizing noncompliance costs on other members.173 Rescinding promises or changing plans thus violates these stabilizing norms. Therefore, obligations arise ?because shared intentions normally involve, both in their etiology and in their execution, associated assurances, intentionally induced reliance, and/or promises. Such assurances (and the like) typically induce relevant moral obligations of one to the other.?174 So, it is the promises and assurances that may arise in conjunction with planning a group activity that obligate, not a coincidental decision to litigate. The oversimplified difference is between saying: ?I intend? versus ?I promise.?175 Promises and mutual assurances include a moral standard that requires fulfillment.176 But promises need not be as explicit as saying, ?I promise.? Rather, as the law of evidence illustrates, agreement might be tacit or implicit depending on the context.177

Very interesting & recommended!

Full post as published by Legal Theory Blog on March 19, 2009 (boomark / email).