Aggregationists at the Barricades: The ALI Principles of the Law of Aggregate Litigation

Abstract

This invited essay assesses the Principles of the Law of Aggregate Litigation in two respects. First, have the Principles induced legislative bodies to enact provisions governing aggregate litigation based on the Principles? Second, have the Principles assisted judges in their management of aggregate litigation through the project’s best practices suggestions? To what extent have judges embraced or eschewed the Principles?

The Principles built upon a longstanding ALI concern with the burgeoning, evolving judicial crisis relating to the resolution of complex litigation. Apart from questions whether the Principles fulfilled its stated purpose, the project also raised fundamental questions concerning the Institute’s role in moving the law in certain directions based on the agendas of non-neutral actors.

One interpretation is that the Principles represented a well-intended effort to provide judges with guidance “where there was little established law.” But another, perhaps more problematic view is that the Principles represented the interests of actors who, frustrated by judicial resistance to aggregate litigation, used ALI auspices to change the law in a desired direction. Thus, if litigants could not persuade judges through legal argument, then pronouncements from the respected ALI might encourage judges to be more receptive to new models to resolve aggregate litigation.

These questions go to the heart of the ALI’s role in guiding attorneys, judges, and rulemaking bodies in furtherance of civil justice. At what point do the scholarly, impartial traditions of ALI undertakings shade into something more problematic and questionable? Whether the liberalization of aggregate procedure is a desirable goal is a normative question that the ALI Principles project assumed but did not address.

This essay concludes that while the Principles project has left its mark, courts and legislative bodies still have not addressed or resolved many issues the Principles identified. Since publication in 2020 most judges seem comfortable with prevailing jurisprudence and not especially interested in rewriting procedural doctrine governing complex litigation. Although the Principles recommended substantial changes in judicial case management, the Reporters and Advisers intended a more robust embrace of liberalized aggregative procedures. The legal system has only partially moved in this direction. The Principles have not resulted in a root-and-branch revision of aggregate procedure. Rather, implementation of the Principles suggests that a more incremental approach to legal reform has prevailed, and the efforts of the avid aggregationists must await another day.