Emory Law Journal

Volume 63Issue 6
Lead Article

Disaggregative Mechanisms: Mass Claims Resolution Without Class Actions

Jaime Dodge | 63 Emory L.J. 6 (2014)

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 as the only mechanism for efficiently resolving mass claims. In this Article, I challenge that long-standing and fundamental assumption.

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Responses

Aggregate Litigation Goes Private

Dana A. Remus, Adam S. Zimmerman | 63 Emory L.J. 6 (2014)

In Disaggregative Mechanisms, Professor Jaime Dodge documents how corporate defendants increasingly design their own mass resolution systems to avoid collective litigation-what she calls "disaggregative" dispute resolution. According to Dodge, such schemes promise benefits not only to putative defendants, but also to plaintiffs-resolving disputes quickly, handling large volumes of claims predictably, and sometimes, offering more compensation than would be available through aggregate litigation. She observes, however, that these systems also risk underdeterrence. Dodge concludes by endorsing disaggregative mechanisms while suggesting a need for more public oversight. In the following response, we argue that, left unregulated, such high-volume claim systems threaten transparency, deterrence, and even the rule of law. We therefore agree with Dodge's call for public oversight. But we observe that a number of policing and oversight mechanisms already exist. Today, lawmakers and regulators police collective arbitration and private settlement funds, in a wide variety of areas-from financial and environmental regulations to employment and consumer protection laws. After reviewing the ways that policymakers currently regulate corporate dispute resolution, we examine their effectiveness by exploring two regulated private settlement systems in more detail: (1) regulations developed by the Obama Administration that require airlines to offer "liquidated damages" using a preapproved settlement grid when they overbook customers on a flight and (2) regulations imposed by the Office of the Comptroller of the Currency following accusations that many of the nation's largest banks executed "robo-signed" mortgages that required banks to perform a detailed "independent foreclosure review" of past loans with borrowers. These case studies demonstrate both the challenges to, and opportunities for, government bodies that attempt to encourage sound regulation of mass private settlement systems without compromising their potential contributions to increased access, equality, and efficiency.

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Morphing Case Boundaries in Multidistrict Litigation Settlements

Margaret S. Thomas | 63 Emory L.J. 6 (2014)

The boundaries of federal multidistrict litigation (MDL) are blurring, as district courts seek innovative ways to facilitate global settlements to resolve multijurisdictional, multidimensional, national mass torts. The techniques emerging from the district courts have mostly evaded appellate review and received little scholarly attention, but they raise important challenges to traditional understandings of the nature of MDL and complex litigation.

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Articles

Litigation Discovery and Corporate Governance: The Missing Story About the "Genius of American Corporate Law"

√Črica Gorga, Michael Halberstam | 63 Emory L.J. 6 (2014)

Strikingly absent from the entire corporate governance and corporate litigation debate is a unique feature of American civil procedure that deserves special attention: the modern civil discovery regime. This Article attempts to fill this gap. We argue that modern discovery, first established by the Federal Rules of Civil Procedure in 1938, has had a profound impact on the evolution of shareholder litigation, corporate governance, and the culture of corporate disclosure in the United States.

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Comments

Protecting Employees from Quid Pro Quo Neutrality Arrangements

Matthew Bowness | 63 Emory L.J. 6 (2014)

Throughout the past several decades, union density in the United States has declined dramatically. One of the primary causes of this decline is staunch opposition to unionization by employers throughout the country.

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