Binding Plurality within Nonclass Aggregate Settlements.

Debates over judicial handling of mass torts litigants typically divide into two competing camps: those who emphasize individual autonomy and those who emphasize "collective" justice through utilitarian-based efficiency and finality. This Article suggests that there is a third way to view nonclass aggregation of mass torts, a way that is distinct from both individual autonomy and efficiency. This alternative draws on the rich literature of social psychology as well as moral and political philosophy to make a serious inquiry into the notion of "group." If we want to bind litigants through collective decision-making of a substantial majority, then we ought to think hard about what a group is and when its collective decisions should bind those in the litigation who disagree with the majority. This Article begins to undertake that task. It asks and answers the question of what it means when "we intend" to jointly undertake some shared task such that the collective "we" should be uniformly bound by the decisions made in that endeavor. Equally important, it undertakes the critical question of how to foster joint intent or at least shared valuing as well as exit mechanisms. In so doing, I contend that rigorously dissecting what we mean by "groups" within aggregate litigation provides some clues about ways to alleviate nonclass aggregation's age old dilemmas such as attorney-client conflicts, client-client conflicts, allocation problems, the lack of voice opportunities, and even the so-called "holdout problem." ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]