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Article
Procedural Justice in Nonclass Aggregation
Wake Forest Law Review (2009)
  • Elizabeth Chamblee Burch
Abstract
Nonclass aggregate litigation is risky for plaintiffs: it falls into the gray area between individual litigation and certified class actions. Although scholars have formulated procedural protections for both extremes, the unique danger and allure posed by nonclass aggregation has been undertheorized, leaving mass tort claimants with inadequate safeguards. When hallmark features of mass torts include attenuated attorney-client relationships, numerous litigants, and the demise of adversarial legalism, the attorney-client relationship itself becomes another bargaining chip in the exchange of rights. This Article takes the initial steps toward advancing a cohesive theory of procedural justice in nonclass aggregation by exposing the problem itself, discerning the principal disparities between litigant preference and mass tort practice, and identifying the main obstacles to implementing procedural preferences. In so doing, it observes that procedural justice is context-dependent and thus a matter of perspective. Claimants’ perspectives and procedural preferences vary depending on whether they view themselves as part of a group or a collective. Accordingly, this Article introduces a continuum for evaluating group cohesion and designates two new points along that continuum—“individuals-within-the-collective” and “group-oriented-individuals.” It concludes by sketching some preliminary observations about tailoring process to meet the needs of these different plaintiffs and the inherent barriers to implementing procedural justice.
Keywords
  • procedural justice,
  • aggregate settlements,
  • non-class aggregation,
  • aggregate settlement rule,
  • ethics,
  • class actions,
  • group litigation,
  • mass torts,
  • participation,
  • voice
Publication Date
Spring 2009
Citation Information
Elizabeth Chamblee Burch, Procedural Justice in Nonclass Aggregation, 44 Wake Forest Law Review 1 (2009) (forthcoming).