From “Cases” to “Litigation”

Abstract

Change is not always noticed. This article documents changes in attitude and practice about the propriety of resolving cases in groups—as part of one "litigation." Over the past three decades, the aggregation of civil cases (briefly—the bringing together of claims of different individuals to prepare them for trial, other adjudication, or settlement) has moved from being the exceptional and specially justified event to the more ordinary and expected response whenever patterns of similar cases appear in the federal courts. The "asbestos litigation," the "DuPont Fire litigation," the "Agent Orange Litigation"—these are now all phrases that sound familiar and that prepare us for whatever the next product liability, toxic tort, antitrust, savings and loan, or other group "litigation" will be. I am interested in the history of the movement—from "cases" to "litigation"—and in the impact of aggregate litigation on the conception of what the work of the federal judiciary ought to be. In this article, I have five central points to make. First, participants and commentators have changed their attitudes substantially over the last three decades about the propriety of cases proceeding in the aggregate. Second, the change in attitude dovetails with changing practices, both formal and informal, that enable much more aggregative processing in federal courts than a few decades ago. Third, aggregation has been promoted as a means of enabling claims that would otherwise not be pursued or as a means of expediting cases already filed. Forms of aggregation claimed "only" to expedite pending claims are perceived to be less politically charged and have been more readily accepted than those aimed at enabling claims. However, these two functions of aggregation are not so distinct in practice, and both have political impact. Fourth, the increase in aggregative processing has changed the way in which cases about individuals are viewed and has influenced contemporary debates about the allocation of authority between state and federal courts and Article III and Article I judges. Fifth, aggregation poses a challenge to the civil justice system, which has been largely animated by individual claims of wrongdoing, to which government-empowered judges and juries respond in a relatively visible and litigant-specific way. Subsequent essays will address many of the issues raised by aggregation—the lessons to be drawn about procedural rulemaking from the array of techniques for aggregation, the impact of aggregation on the course of lawsuits, on the relations among clients, attorneys, insurance companies, and courts, on the institutional activities of courts and auxiliary personnel, on public access to court-based decisionmaking, and on the import of individually-based case disposition.