Supreme Court decisions in recent years have threatened the availability of aggregate litigation processes, and caused scholars and practitioners to wonder if the class action might soon be a thing of the past. This article takes another perspective on class actions' possible obsolescence, and argues that, notwithstanding recent legal changes, class actions in their current form are becoming outdated as technological changes undermine the original rationale for the modern Rule 23 class action and the procedures through which it is executed. While scholars and practitioners have discussed the Internet's ability to enhance the aims of class action lawsuits, little of the literature addresses how the Internet, social networking, and so-called Web 2.0 are dislodging basic assumptions about the appropriate use and conduct of class action lawsuits. Changes in social organization mediated by technology warrant a re-examination of the bipolar view embodied by existing doctrine that the relevant parties are either a bonded group of individual litigants or a homogenous entity, with no room for more nuanced distinctions. Aggregate litigation processes should be designed to engage a greater number of distinct groups in the modern world where individuals can accomplish what could only be done by collectives in a previous generation, and collectives can better accommodate individuality without sacrificing group welfare. By engaging groups at different levels, more democratic and effective mass dispute resolution can be achieved, and some of the doctrinal challenges facing mass dispute resolution can be better addressed. Research on dispute systems design could provide guidance for engaging different groups of disputants in light of its focus on creating systems to provide aggregate dispute resolution alternatives encompassing both group and individual interests.
|Original language||English (US)|
|Number of pages||72|
|Journal||Harvard Negotiation Law Review|
|State||Published - 2014|