Disaggregative Mechanisms: Mass Claims Resolution Without Class Actions
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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. This 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 judicial aggregation of victims that has been the hallmark of
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 ameliorate the asymmetries that
prompted the creation of class actions. Many of our most innovative claims
structures—from the BP Gulf Coast Claims Fund 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 greater
compensation to claimants more quickly and at a 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. Yet, because these systems are the product of
contract, attempts to restrict them have largely failed. This Article tees up not only the problem these privately ordered processes are creating for the
enforcement of traditional public mechanisms of aggregation, but also the
problems with the public system that drove the private demand for
disaggregation. The Responses to this Article published in the remainder of
this colloquy begin to explore the consequences of this new approach to mass
claims and the array of potential public mechanisms for bringing aggregation
and disaggregation into balance.
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