Aggregate Litigation and the Death of Democratic Dispute Resolution

Abstract

Professor Martin Redish has both anchored the modern class action in American political and constitutional theory, raising serious questions about the legitimacy of this procedural device for resolving aggregate claims. Professor Redish’s major insight is his argument that the courts and litigants have transformed the modern class action from a mere procedural device into a means for controlling and altering substantive law, in ways that he considers to be highly undemocratic. 

Others, however, have suggested that the class action is dead. The article surveys accounts of the death of class actions and explains the continued endurance of class litigation ― which, it turns out ― is hard to kill off. The article then documents the changing landscape of aggregate dispute resolution, documenting a significant paradigm shift in the twenty-first century towards increased use of private claims resolution mechanisms. The article focuses on settlement classes, multidistrict litigation procedure, contractual non-class settlements, the quasi class action, and fund approaches to mass claim resolution. 

Finally, the article critically evaluates this paradigm shift and concludes that Redish’s critique of class action litigation has even greater relevance in the new world of non-class, aggregate claims resolution: that Professor Redish’s critique applies with even greater force in the non-class universe. With the paradigm shift towards non-class aggregate claims resolution, the arc of history may be bending towards greater injustice ― a shift that is more significant because it is largely unbounded by rules and unmoored from judicial oversight.