Authors

Judith Resnik

Document Type

Article

Citation Information

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Abstract

This Article maps the transformation of constitutional understandings of the forms of aggregation that due process permits by putting these expanding views into the context of the changes in the federal docket during the past half century. In the 1940s, jurists interpreting the representative action provisions of the Fair Labor Standards Act thought individuals who had not personally agreed to be part of those cases could not be bound by the results. In the 195os, however, the Supreme Court approved aggregation to serve the "vital state interest" in protecting banks from large numbers of claims when trust accounts were pooled. And in 1966, Rule 23 created a broader mechanism to bind absentees without their affirmative consent or their participation at the inception of a lawsuit. Through analyzing unpublished memos by Rule 23 drafters, I show how remarkably successful they were in displacing once conventional constitutional wisdom by disentangling autonomy, consent, and individualization in litigation from the strictures of the Due Process Clause.

One marker of change comes from data on the related aggregate form of multi-district litigation, which in 2015 accounted for almost forty percent of the federal courts' docket of pending civil cases. Other data mark the need for aggregation: twenty-five percent of the civil filings in federal court, and fifty percent of the appeals, are by litigants without lawyers. Aggregation provides infusions of resources that are central to enabling litigation, and hence aggregation continues to serve the "vital interest" of the government-in need of legitimate court systems to which diverse users have access.

Date of Authorship for this Version

2017

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