Elizabeth Chamblee Burch (Florida State University - College of Law) has posted Procedural Justice in Nonclass Aggregation (Wake Forest Law Review, Forthcoming) on SSRN. Here is the 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 thus 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.
And from the article:
As defined by social psychologists, procedural justice, as opposed to distributive justice, is the belief that the dispute resolution process is fair and satisfying in and of itself.21 More specifically, as [one writer] defines the term, procedural justice “is concerned with the adjudicative methods by which legal norms are applied to particular cases and the legislative processes by which social benefits and burdens are divided.”22 So procedural justice has both an objective and a subjective component: it is a fair means for applying legal norms and resolution procedures to particular cases that is, in turn, psychologically satisfying to the participants.
Though we often draw sharp lines when contemplating individual versus class litigation, no lines exist. Instead, there are various degrees of interpenetration and cohesion—multiple issues within litigation create harmony or conflict. So consider first the extremes. At one end of the continuum lies individual litigation where each individual pursues exclusively her own goals. At the other end, beyond even class litigation, lies pure group cohesion where the group obtains and maintains perfect consensus.
Between those extremes, this continuum recognizes that claimants’ perspectives vary by group formation, solidarity, and homogeneity; the mass tort’s maturity level; the timing and method of aggregation; and how and when claimants secure representation. Aggregation and representation may occur in any number of ways: some claimants may enter into contingency-fee agreements with specific attorneys who represent similar claimants—the aggregation here may occur either purposefully through the attorney or through coercive court-mandated consolidation procedures. Others may first form an interest group and then seek collective representation. Still others may join the litigation post-aggregation after hearing about it in the news or through attorney advertising.55 For ease of reference, I will identify two sub-points within aggregate litigation: “individuals-within-the-collective” and “group-oriented individuals.”