Participation and Procedure by Alexandra D. Lahav :: SSRN

The elementary model of the attorney client relationship is principal-agent, a private matter.  But the tort system serves a larger public  function. through it government promises a reliable system of  recourse for wrongs.  Particularly in personal injury cases the wrong is very personal.  Yet aggregation of cases – a practical necessity – changes the negotiating lawyer into a broker for many, diluting the attorney-client bond.  The lawyer becomes a principal, the client a commodity.  Alexandra Lahav explores the issues. – gwc

Participation and Procedure by Alexandra D. Lahav :: SSRN

Abstract

How much participation should a procedurally just court system offer litigants? This question has always been especially difficult to answer in complex litigation such as class actions and mass torts because these cases involve so many litigants that it would be impossible for each of them to be afforded the kind of individualized hearing that we associate with the day in court ideal. To address the problem, we need to go back to first principles and ask what purposes participation in litigation is meant to serve. Participation serves two purposes: as a predicate to litigant consent and to engage public reason. This Article, written for the Clifford Symposium honoring Judge Jack Weinstein, argues that the public reason rationale offers the best normative underpinning for participation in large-scale litigation and demonstrates how public reason can be realized through procedural innovations such as those Judge Weinstein has pioneered.

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