Thoughts about Professor Resnik's paper.

• Author: Higginbotham, Patrick E.
• Position: Mass Torts Symposium - Response to article by Judith Resnik in this issue, p. 2119

Professor Resnik offers a compelling description of the problems of aggregating cases and compensating attorneys engaged in their resolution.(1) Her responses are creative and offer fresh insights into this heavily-plowed terrain. Ultimately, in her redefinition of roles for judges and lawyers, she depends upon increased judicial regulation and oversight of attorneys. Rather than such a redefinition of roles, I prefer to accent structural changes calculated to achieve similar results by invoking attorneys' self-interest, and changes with less policing, albeit more than now exists.

In Part I, I caution against charging aggregation with problems that it exposes but does not create. In Part II, I turn to the specific recommendations of the paper.

I

Legislative use of private attorneys general to enforce set norms has long been a familiar part of American government. This use of private litigation as a tool of governance is justified as a powerful means of both compensating victims and achieving regulatory' compliance. Yet these twin justifications are in tension because compensation costs have: no internal tether to an optimal level of costs for regulatory compliance. They are related only in a rough, serendipitous way. The costs of compensating victims may be insufficient to effectuate regulatory compliance or so large as to overwhelm. It is pure happenstance if compensation and regulatory force balance out. With traditional bipolar sequential case resolution, the risk is underregulation: a gap opens between the costs of the cases and the cost levels essential to the regulatory objective.(2) Put another way, the system assumes the underprosecution of losses. Aggregation of cases exposes this lack of fit between costs of compensating victims and tolerable regulatory costs.

At the same time, undercompensation is not inevitably an imperfection. Regulatory goals might be frustrated by full compensation of all "victims." Note that the term "victim" derives its meaning from the norm to be enforced. Additionally, the perceived unfairness in leaving "victims" undercompensated may be ignoring the circumstance that victim status is a derivative of the norm. There is a "victim" because in proscribing conduct, a statutory scheme may create a "right" to be free of the effects of the forbidden conduct. Enforcement of norms that sweep too broadly tend to identify "victims" with little connection to the policy in play.

Private attorneys general have remained important players in enforcing policy despite the often ill-defined concept of "victim." Their usefulness in the many cases in which a rule has defined a "victim" too broadly is protected in part by the reality that the traditional model of episodic, sequentially-filed suits ordinarily does not generate claims by all "victims." When the decision to sue rests on the initiative of the "victim," many will not sue. And any unfairness of the unevenness in the awards across cases is masked.

Aggregation exposes these realities. It reveals an overly broad scope of "victims" because its efficiency in gathering claims results in fuller prosecution, possibly threatening the existence of regulated entitles. Aggregation exposes inequities in recoveries across cases, creating pressure to shore up the unevenness inherent in open-ended norms. We see this result reflected in the now-familiar move from agreed specific settlement amounts to negotiated processes creating claims systems with grids and other devices--not unlike the Sentencing Guidelines. In short, many of our complaints with aggregation are difficulties that aggregation exposes but does not create.

The popularity of private litigation, particularly damage suits, as a tool for enforcing legislative policies has been sustained in part by the assumption of underenforcement. A higher level of enforcement of such policies raises the question of whether Congress intended that result. When a change to Rule 23 is read to facilitate large aggregations, for example, it provokes assertions that the change in the proposal is substantive and outside of the Enabling Act. Indeed, a change to Rule 23 that would discourage large classes of very small claims provokes the same assertion.

To my eyes, the culprit here is the absence of a clear statement of legislative policy.. The level of enforcement is part of the package of policy choices that ought to attend the legislation. We might take a page from the recent spate of federalism disputes: a judicial insistence upon a clear statement from Congress as a condition to aggregation. Against the backdrop of our trans-substantive rules of procedure, Congress ought to decide whether to limit aggregation by caps or other devices when those procedural rules would engender a level of enforcement never intended by Congress. In short, whether and why large numbers of cases should be aggregated ought to be a considered choice reflecting its powerful substantive consequences.

One other seemingly independent legal development ought not be ignored. The bottom line, so far, of the Seminole Tribe,(3) City of Boerne,(4) and Alden v. Maine(5) castes is that Congress cannot enforce its norms against States through the use of private damage suits. Simultaneously, the Supreme Court has ensured the vitality of Ex Parte Young,(6) and specifically the availability of prospective injunctive relief. This leaves the enforcement of federal norms against States to suits by the United States or to the tailored injunctions of private suits. States have been freed from the...