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Aggregation Aggravation

By James M. Beck and Mark Herrmann

In our never-ending search for fascinating stuff to share with you, we've stumbled across two recent articles analyzing aggregate litigation.

The first is "Embedded Aggregation in Civil Litigation," by Richard Nagareda (Vanderbilt). Nagareda thinks about situations where decisions made in individual cases affect groups of people, such as constitutional limits on punitive damage awards in single-plaintiff cases. (Philip Morris USA v. Williams allows courts to consider the "reprehensibility' of a defendant's conduct in awarding punitive damages, but "reprehensibility" arguably requires considering the circumstances of nonparties to the litigation.) In the words of Nagareda's syllabus at SSRN:

"Each instance involves a more general phenomenon, what this Article delineates as 'embedded aggregation.' In each, a doctrinal feature of what is ostensibly individual litigation ? the scope of the right of action asserted, the nature of the remedy sought, or the character of the wrong alleged ? gives rise to demands for the suit to bind nonparties in some fashion, beyond the ordinary stare decisis effect that any case might exert. Ironically, the features of Taylor, Williams, and the Vioxx litigation that make them situations of embedded aggregation also, in all likelihood, would defeat efforts to aggregate them overtly as class actions. The result is to leave the law today in a kind of procedural Catch-22, whereby embedded aggregation seemingly invites class-action treatment, but such treatment is unavailable due to the very features that make the situation one of embedded aggregation."

Nagareda's proposed solution is to permit types of aggregation other than class actions -- what he calls "hybridization." Again, in the words of the syllabus:

"The way out of the procedural Catch-22 in which the law finds itself consists of 'hybridization' ? the combination of individual actions with some manner of centralizing mechanism, just not always the unity of litigation generated by the class action device. . . . The time has come to move the conversation about aggregate procedure beyond the class action device ? to broaden the menu of approaches available for our modern world of mass civil claims."

Whether or not we agree with Nagareda's thesis, he's certainly thinking big, and that's the type of thinking that properly belongs in law reviews.

The other recent article about aggregation, "Aggregation, Community, and the Line Between" was posted at SSRN by Elizabeth Chamblee Burch (Florida State), and it's a bit more theoretical. Burch explains:

"As class-action theorists, we sometimes focus so heavily on the class certification threshold that we neglect to reassess the line itself. The current line asks whether procedurally aggregated individuals form a sufficiently cohesive group before the decision to sue. Given this symposium?s topic?the state of aggregate litigation and the boundaries of class actions in the decade after Amchem Products, Inc. v. Windsor and Ortiz v. Fibreboard Corp.?the time is ripe to challenge our assumptions about this line in nonclass aggregation. Accordingly, this Article examines group cohesion and asks whether the current line is the only dividing line or even the correct one. If we are willing to look for genuine cohesion among individuals who are procedurally aggregated but lack sufficiently common traits before the decision to sue, then we will find an alternative, but perhaps more compelling, justification for binding collective interests."

Full post as published by Drug and Device Law on December 14, 2009 (boomark / email).