Compared to What?: ALI Aggregation and the Shifting Contours of Due Process and of Lawyers’ Powers

Abstract

A half century ago, class actions were controversial. Aggregation was seen as permissible only under exceptional circumstances that could justify departures from the obligations of individual voice, participation, and control of the then-dominant procedural framework. The adoption in 2009 by the American Law Institute of Principles of the Law of Aggregate Litigation marks the normalization of group-based adjudication as well as the embrace of group-based settlements through which lawyers and judges shape binding and preclusive judgments. In its 2009 promulgation, the ALI offered two models of the “process due.” One, centered on courts, requires public explanations of decisions to authorize group-based resolutions. The other imposes some regulation on out-of-court behavior yet relaxes relational constraints on lawyers by licensing them to enter into individual contracts that sign over control about mass settlements of claims to a cohort of clients and their lawyers. The ALI’s expansive attitudes contrast to another understanding of due process, exemplified by the 2008 Supreme Court decision of Taylor v. Sturgell. That ruling insisted that courts could not rely on the idea of “virtual” representation to use a judgment against one party to preclude another, even if the sequential plaintiffs shared the same lawyer. In this Article, I explore the histories, differences, and benefits of these divergent approaches as they allocate authority among disputants, lawyers, judges, and thereby give meaning to the phrase “due process of law.”