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Prof. Burch Posts Article on Nonclass Aggregation & Procedural Justice

Professor Elizabeth Chamblee Burch (Fla. State) recently posted an Article entitled Procedural Justice in Nonclass Aggregation 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.

This Article may be downloaded by visiting http://ssrn.com/abstract=1280385.

Full post as published by Federal Civil Practice Bulletin on January 13, 2009 (boomark / email).