Disaggregative Mechanisms: The New Frontier of Mass-Claims Resolution Without Class Actions

Aggregation has long been viewed as the primary if not sole vehicle for mass claims resolution. For a half-century, scholars have consistently viewed the consolidated litigation of similar claims through joinder, class actions and more recently multi-district litigation as the only mechanism for efficiently resolving mass claims. In this Article, I challenge that long-standing and fundamental conception. The Article seeks to reconceptualize our understanding of mass claims resolution, arguing that we are witnessing the birth of a second, unexplored branch of mass claims resolution mechanisms — which I term “disaggregative” dispute resolution systems because they lack the traditional aggregation of common questions that has been the hallmark of traditional mass claims litigation. Disaggregation returns to a focus on the individual akin to that of the single-plaintiff system, but uses either procedural or substantive streamlining, or a shift of costs to the defendant, to correct the asymmetries that prompted the creation of class actions. Many of our most innovative claims structures — from the BP GCCF and the fund created in the wake of the Costa Concordia disaster, to the common single-plaintiff arbitration clauses in consumer and employment agreements — use this new, bottom-up model of disaggregative mass claims resolution instead of the familiar top-down aggregative model. These next-generation systems have been heralded as a significant advancement in mass claims resolution, capable of awarding more compensation to claimants more quickly and at lower cost than aggregate litigation. But like the single-plaintiff and aggregate litigation systems that preceded it, disaggregation has its flaws. Because the defendant typically designs these systems, they often give rise to questions about legitimacy and the accuracy of compensation. More shockingly, situating disaggregation within the existing doctrinal trends reveals that the rise of disaggregation allows corporations to avoid class actions in a far broader swath of cases than has previously been identified — such that class actions will, as a practical matter, proceed only at the defendant’s election, raising substantial questions about the viability of private actions as a mechanism for the enforcement of law. Yet, because these systems are the product of contract, attempts to restrict these systems have largely failed. The answer to these problems lies in an unlikely and potentially controversial approach: expanding rather than restricting the availability of disaggregation, by creating a public mechanism for disaggregation — comparable to the existing public aggregation mechanisms

Reconceptualizing Non-Article III Tribunals

The Supreme Court’s Article III doctrine is built upon an explicit assumption that Article III must accommodate non-Article III tribunals in order to allow Congress to “innovate” by creating new procedural structures to further its substantive regulatory goals. In this Article, I challenge that fundamental assumption. I argue that each of the types of non-Article III innovation and the underlying procedural goals cited by the Court can be obtained through our Article III courts. The Article then demonstrates that these are not theoretical or hypothetical solutions, but instead are existing structures already in place within Article III. Demonstrating that the foundation of our existing Article III doctrine cannot stand does not necessarily require the invalidation of all non-Article III tribunals. Instead, it requires a new generation of theory, built upon a more accurate conception of the forms of adjudication. This Article proposes two pillars upon which this new jurisprudence may rest. This Article undertakes to build the first piece of that foundation by demonstrating that tribunals only have unique institutional capacities when fulfilling an executive or legislative function — not when fulfilling purely adjudicative roles. This observation comports with the intuition of the early Article III doctrine. While this early intuition was abandoned to accommodate the modern administrative state, the Article reveals that these intuitions can not only be undertaken without undermining the modern administrative state, but would better satisfy the normative goals identified by the modern Court. This robustness suggests that this approach may provide a solid foundation for Article III doctrine, consonant not only with the existing architecture but also the innovation and evolution of law to come. But, equally important, correcting these mistaken assumptions reshapes many of the leading Article III theories in ways that provide answers to heretofore-unanswered critiques, as these insights have the capacity to demonstrate the feasibility of stricter constitutional approaches, while providing a constitutional basis for pragmatic doctrines. The second component of the foundation lays in the exception to Article III — consent of the parties. The consent of the parties to a non-Article III structure has become a foundational premise in our jurisprudence, invoked as recently as last Term by the Court. But this Article argues that this doctrine is undertheorized and seeks to establish that mere consent is not sufficient to protect Article III’s individual rights and structural role. Specifically, the Article explores the ways in which Congress has utilized its constitutional power both to create law and to structure the courts to devalue substantive rights or litigation outcomes to pressure individuals to consent to the non-article III determination of state and common law claims. Viewed through this lens, permitting non-Article III adjudication based on party consent may incentivize precisely the types of exertions of power by Congress to undermine the constitutional courts that Article III sought to preclude. This Article suggests that the doctrine must take a harder look at consent if it is to protect not only the structural role of Article III, but even the individual’s Article III rights from encroachment by Congress

Privatizing Mass Settlement

From BP’s oil spill in the Gulf of Mexico to the National Football League’s (NFL) inability to honor Super Bowl tickets, corporate defendants are contravening the established litigation wisdom and offering full compensation to victims—without haggling to pay pennies on the dollar, without stall tactics and frivolous motions; indeed, without any litigation at all. These offers have often been dismissed as rare one-off exceptions to the rule. This Article challenges that claim, suggesting that these private mass settlements are instead relatively common features in our aggregate litigation system. The Article explores the reasons that, contrary to traditional wisdom, defendants would voluntarily settle claims. It argues that in cases of clear culpability, defendants can mitigate the harm to corporate reputation and reassure shareholders. But, these settlements can also operate at the opposite end of the spectrum, with far more substantial consequences. Correctly structured, these settlement offers allow defendants to preclude the certification of a class action. These settlements thus offer an incredibly powerful tool in deterring or rendering impotent nuisance-value litigation by de facto converting any claim from an opt-out class action into an opt-in settlement. While arbitration provisions have been used as a mechanism for preventing class certification, they inherently can only reach contractual relationships; bilateral mass settlements are not so constricted, allowing them to reach any mass claim. This transition from opt-out to opt-in mechanisms upends the traditionally assumed relationship between the interests of compensation, deterrence, and legitimacy with respect to mass wrongs. This balance is far more complex than has been posited in the existing analyses and demonstrates that the twin fundamental assumptions of our class action system are not unchanging truths but instead mere default positions. Indeed, in this new world, defendants now have the ability to prevent almost every class from being certified against them—yet, as the analysis demonstrates, they may not choose to do so. In short, this Article seeks to replace our conception of the public aggregate litigation system with a new, more comprehensive model that also incorporates the private ordering that is driving this new emerging generation of aggregate claims mechanism

Arbitration, Consent and Contractual Theory: The Implications of EEOC v.Waffle House

Consent has long been the foundation of arbitration, giving the process legitimacy and informing decisions about its nature and structure. The Supreme Court has consistently required consent as a precondition for compelling arbitration. However, it remains unclear what actions constitute consent. In First Options v. Kaplan,1 the Supreme Court held that courts should apply state contract law to determine whether an arbitral clause exists, but “added an important qualification” that “[c]ourts should not assume that the parties have agreed to arbitrate unless there is clear and unmistakable evidence that they did so.”2 In the wake of First Options, the courts of appeals have compelled arbitration by non-signatories, applying both state contract law and the pro-arbitration mandate of the Federal Arbitration Act (“FAA”).3 This trend of compelling arbitration by non-signatories4 is in tension with the traditional notion that arbitration should be based upon direct consent by the parties. The Supreme Court had historically refused to grant certiorari to resolve this conflict.5 *290 In its 2002 term, the Court accepted its first case, EEOC v. Waffle House,6 that directly addressed when a non-signatory may be required to arbitrate. The Court held that if a non-party has not consented to arbitration, it could not be compelled to arbitrate its claim. The holding reinforced First Options and clarified that its protections reach non-parties, which was consistent with the Court’s tendency toward a strict construction of consent for determinations of arbitrability. Nonetheless, the Court’s minimal attention to the issue in Waffle House may not have provided sufficient guidance to judges attempting to reconcile the federal pro-arbitration policy, the application of contractual theory, and the consent requirement. As a result, lower courts could conceivably continue to compel arbitration by relying on state contract law even in the absence of real consent, thereby contravening the most fundamental principle of arbitration. Part I of this Note describes the facts, procedural history and holding of Waffle House. Part II then explores the current non-signatory jurisprudence through an examination of the five state law bases for compelling arbitration by a non-signatory. Part III assesses the relative merits of opposing arguments about whether Waffle House has or has not precluded these theories for requiring non-signatories to arbitrate. Part IV concludes that the court has limited, but not completely precluded, the expansion of binding arbitration to non-signatories

Effect of Sodium Fluoride Ingestion on Malondialdehyde Concentration and the Activity of Antioxidant Enzymes in Rat Erythrocytes

Fluoride intoxication has been shown to produce diverse deleterious metabolic alterations within the cell. To determine the effects of sodium fluoride (NaF) treatment on malondialdehyde (MDA) levels and on the activity of antioxidant enzymes in rat erythrocytes, Male Wistar rats were treated with 50 ppm of NaF or were untreated as controls. Erythrocytes were obtained from rats sacrificed weekly for up to eight weeks and the concentration of MDA in erythrocyte membrane was determined. In addition, the activity of the enzymes superoxide, dismutase, catalase, and glutathione peroxidase were determined. Treatment with NaF produces an increase in the concentration of malondialdehyde in the erythrocyte membrane only after the eight weeks of treatment. On the other hand, antioxidant enzyme activity was observed to increase after the fourth week of NaF treatment. In conclusion, intake of NaF produces alterations in the erythrocyte of the male rat, which indicates induction of oxidative stress

Privatizing Mass Settlement

From BP’s oil spill in the Gulf of Mexico to the National Football League’s (NFL) inability to honor Super Bowl tickets, corporate defendants are contravening the established litigation wisdom and offering full compensation to victims—without haggling to pay pennies on the dollar, without stall tactics and frivolous motions; indeed, without any litigation at all. These offers have often been dismissed as rare one-off exceptions to the rule. This Article challenges that claim, suggesting that these private mass settlements are instead relatively common features in our aggregate litigation system. The Article explores the reasons that, contrary to traditional wisdom, defendants would voluntarily settle claims. It argues that in cases of clear culpability, defendants can mitigate the harm to corporate reputation and reassure shareholders. But, these settlements can also operate at the opposite end of the spectrum, with far more substantial consequences. Correctly structured, these settlement offers allow defendants to preclude the certification of a class action. These settlements thus offer an incredibly powerful tool in deterring or rendering impotent nuisance-value litigation by de facto converting any claim from an opt-out class action into an opt-in settlement. While arbitration provisions have been used as a mechanism for preventing class certification, they inherently can only reach contractual relationships; bilateral mass settlements are not so constricted, allowing them to reach any mass claim. This transition from opt-out to opt-in mechanisms upends the traditionally assumed relationship between the interests of compensation, deterrence, and legitimacy with respect to mass wrongs. This balance is far more complex than has been posited in the existing analyses and demonstrates that the twin fundamental assumptions of our class action system are not unchanging truths but instead mere default positions. Indeed, in this new world, defendants now have the ability to prevent almost every class from being certified against them—yet, as the analysis demonstrates, they may not choose to do so. In short, this Article seeks to replace our conception of the public aggregate litigation system with a new, more comprehensive model that also incorporates the private ordering that is driving this new emerging generation of aggregate claims mechanism

Facilitative Judging: Organizational Design in Mass-Multidistrict Litigation

Faced with the emerging phenomenon of complex litigation¿from school desegregation to mass torts¿the judiciary of the last century departed from the traditional, purely adjudicative role in favor of managerial judging, in which they actively supervised cases and even became involved in settlement talks. I argue that a similar transition in judicial role is now occurring. I contend that transferee judges are now stepping back from active participation in settlement discussions but playing a far greater role in structuring and administering the litigation. This new judicial role focuses on facilitating the parties¿ resolution of the case, whether through settlement or remand for trial. But as transferee judges increasingly focus upon efficiently directing and sequencing litigation, their procedural and structural decisions can often have unanticipated consequences for the parties¿ strategic aims. This Article therefore focuses not only upon identifying the emerging best practices for what I term ¿facilitative judges¿ in the first days of multidistrict litigation but upon the strategic consequences these practices have for the litigation