Stories, Individuals, Statistics, Aggregation, Torts, and Social Justice: Deborah Hensler’s Aspirations for Law

Abstract

Engaging with Deborah Hensler’s career provides a window into the transformation of tort litigation, of courts, of legal empiricism, and of legal studies. In the 1980s, I joined a project of the Institute of Civil Justice of RAND to do an innovative study focused on civil litigants that elicited information directly from them, as contrasted with lawyers or lab-based simulations. The litigants we studied had favorable views of trial; they described themselves as able to participate, to be heard, and to have received respectful treatment. Trial and arbitration ranked more favorably than judge-run settlement conferences and lawyer-lawyer bilateral negotiations, which excluded the people whose cases were at issue. Reflecting back, this study—part of what was then a growing procedural justice literature—documents a world of litigation that has since become unusual. The lawsuits we studied involved torts; litigants sought relatively modest sums and proceeded case by case with lawyers who represented them. Today’s litigation world looks radically different. Torts have declined as a percentage of federal and state court caseloads, aggregation has gained saliency as a major mode of proceeding for tort claims that do enter the system, and the courts are awash with lawyerless litigants. This essay maps those changes, the debates about aggregation of torts in class actions, the impact of bankruptcies involving defendants in asbestos and other product liability litigation, the rise of multi-district litigation, corporate defendants’ search for “global peace,” and the turn in courts to consider how gender, race, and ethnicity affect their processes and substantive law. Deborah Hensler reminds us to aggregate and to disaggregate, to think about the ideas underlying calls for a “day in court” and “due process” and analyze the tradeoffs, to find ways to learn from participants in litigation systems about their forms and functions, and to probe outcomes so as to assess what remedies and money flows to whom, and why.