Actualizing the Trope of Internationalism in Class Action Theory

Harvard Law Review, June 2005 | Go to article overview

Actualizing the Trope of Internationalism in Class Action Theory


Recent developments in Congress and the courts have drawn renewed attention to two phenomena that legal scholars and practitioners have grappled with extensively over the past two decades: the demand for class action lawsuits (1) and the desire of foreign plaintiffs to make use of the U.S. legal system. (2) Although class actions and foreign access may appear to present distinct analytic challenges for the design and capacities of the American legal system, they are both symptomatic of fundamental changes that have defined the economic, social, and political landscape of the late twentieth and early twenty-first centuries: mass production and distribution of goods, technological advances facilitating communication and coordination across distances, flexible legal mechanisms, and an activist bar that encourages judicial dispute resolution. This shared etiology, coupled with the presence of foreign plaintiffs in a number of high-profile mass tort cases that spurred academic debate over the proper scope of class actions, makes it surprising that class action scholarship rarely recognizes the international dimensions of various system-design proposals.

One of the most provocative of these proposals, championed by Professor David Rosenberg, is the mandatory-litigation class action. This non-opt-out aggregation of claims and averaging of awards harnesses the full power of the class action to provide optimal deterrence and insurance, accounting for individual autonomy through the realization of ex ante preferences. Because the level of precautions that a potential tortfeasor will take depends on ex post aggregate liability, there exists ex ante only a collective interest in efficiently minimizing accident costs. Because goods are standardized, everybody suffers if the system put in place results in underenforcement or overenforcement. While proponents of the theory have deflected challenges to the viability of implementation in light of current U.S. doctrine, they have not considered the problems posed by the nature of the modern international system: nation-states each with the power to undermine the finality of foreign decisions and each with different regulatory and insurance schemes to deal with threats and injuries to citizens.

Despite this presumption of administrability through the coercive power of a nation-state possessing, or with the potential to create, a unitary legal system, mandatory-litigation class action theory is fundamentally an international project and employs language that clearly bespeaks its global aspirations. Indeed, class action discourse in general is replete with terms that reach beyond national borders. One might be tempted to dismiss this trope of internationalism as rhetorical hyperbole. But doing so would be a mistake--and in the case of the mandatory-litigation class action theory, a misunderstanding of its foundational principles. The insights of class action literature can inform debate not only over the inner ordering of the American legal system, but also over those doctrines that touch the world beyond. While some scholars have placed class action theory in an international context by applying it to violations of international human rights, (3) there remains great latitude to explore international elements of more traditional mass torts. (4) Even if the Federal Rules of Civil Procedure were to provide for mandatory-litigation class action and the Supreme Court found nothing objectionable therein, other doctrines crucial to the origin and effect of collectivized action, but left unaccounted for by the theory--such as forum non conveniens or the limits of international recognition--would continue to make the achievement of complete aggregation and averaging an illusory goal.

This Note takes seriously the trope of internationalism in class action literature, focusing on how mandatory-litigation class action demands reconsideration of those areas of U.S. law that intersect with the legal regimes of other nation-states.

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