The Essentials of Democratic Mass Litigation

Article excerpt

I. INTRODUCTION

We take for granted our immersion in contemporary mass society, and have learned to cope with, if not rejoice in, our pervasively depersonalized daily lives. Only a few years ago, our quotidian transactions would have been conducted primarily face-toface, as we ran our errands, bought our groceries, did our banking, posted our letters, and made the rounds of our work and leisure routines in the three-dimensional world. More and more of the business formerly conducted in the "real" world has now moved online, has shrunk to the two dimensions of a computer screen, and no longer involves direct communication with other human beings. When we entered the era of mass production and mass marketing, the time when standardized goods and services first began to move freely throughout the country, courts were faced for the first times with claims involving goods and deceptive services that had harmed, injured, and affected thousands or millions nationwide instead of a few, local victims. The first generation of mass litigation was born. Add the Internet to mass production and mass advertising, and the virtual era is born.

In this era, we bank, mail, buy and sell, correspond and interact virtually and impersonally.1 We do not see nor hear, touch or feel other humans in much of our daily business; indeed, there may or may not be real "others" out there in cyberspace with whom to deal. Sometimes it seems we live on a post-human planet. What does this mean for our sense of individual dignity, worth, or even our reality as human beings? What is the duty and role of our justice system to assist in - or at least scrutinize and administer resolutions of - our struggles to protect our civil and economic rights, and indeed our human dignity, in this age of impersonal mass wrongs? Can we deploy the same technologies that we sometimes distrust or resist - computers, the Internet (and now "the cloud"), social media, and technologies as yet undreamed of - to advance these interests? Can mass litigations retain - or return to - democratic principles through this technology? In the litigation context, can computers keep us human?

Throughout our history, we have relied upon our courts to serve as a vital check against the usurpation of power by the other two branches of our government. At the same time, we have used our courtrooms as temples of direct democracy,2 where transgressors to the social contract can be held accountable to the public, through the extremely - some might say uniquely - democratic institution of the jury. Lobbyists and campaign consultants have no place in the courtroom, and no one can disturb deliberations once the jury retires. The jury trial is held on neutral ground, unmediated by elected representatives or any who advise or seek to influence them - a reason, perhaps, why trial lawyers are the bane of politicians, and why "tort reform" is a favorite topic of legislators and their lobbyists.

Our doctrines of procedural due process - the operating system of all judicial proceedings - emphasize the autonomy of the individual, the right of each person to be heard, and the sense that the integrity of the legal process itself depends upon accommodation of the need to treat every person with dignity. In our system, due process is a necessity, not a luxury, and we insist upon it in all criminal and civil proceedings.

Yet worlds collide. The judicial ideal must confront economic reality. Even as our court system continues to enshrine the model of the individual action, the forces of mass production, mass marketing, and the national and international distribution of uniform consumer goods and standardized financial and commercial services mean that product failure or fraudulent conduct will continue to injure or damage more and more persons. We have been unwilling or unable to increase the personnel of our court system to the size necessary to provide individual proceedings for every injured person who is a victim of a mass wrong. …