Aggregate Litigation: American Courts and the Struggle for Mass Justice

Three truths make an understanding of aggregate litigation increasingly indispensable to a true understanding of how American civil justice succeeds or fails.  First, injuries, whether inflicted by government or private entities, routinely get suffered on a mass scale.  Large numbers of people – whether criminal defendants held in a county’s badly run jail system or consumers purchasing the same defective product – suffer the same or similar harm.  Second, American skepticism for large government means that regulatory duties left undone by overburdened government agencies get delegated to private lawyers filing civil actions.  Third, public investments in adjudication have failed to keep up with the growth of the American population and economy, making judicial resources more and more scarce.

Aggregate litigation results.  Rather than leave rights violations unremedied, force individual plaintiffs to wait in interminable lines, or surrender economic activity to laissez-faire, our civil justice system has developed various ways by which courts adjudicate large numbers of claims all at once.  This litigation has immense regulatory significance, as companies facing large damages awards or governments threatened with broad injunctions have to choose whether and how to make systemic changes to their behavior.  It also faces judges, lawyers, and a public skeptical of large-scale litigation, a hostility that has placed barriers in the way of plaintiffs trying to secure mass justice.

This course will study the doctrinal and non-doctrinal factors that determine when episodes of aggregate litigation commence and whether and how they succeed.  Students will study the law of class actions and the law that regulates federal multidistrict litigation.  They will also study financial and other determinants that affect case selection, case management, and settlement incentives.  Finally, students will study the role that aggregate litigation plays in modern American government.