Lindsey D Simon, ‘Bankruptcy Grifters’, 131 Yale Law Journal 1154 (2022). Sir Winston Churchill famously remarked that ‘democracy is the worst form of Government except for all those other forms that have been tried from time to time’. The witticism endures because the flaws and failures of democracy (in its many forms) are obvious and omnipresent, yet it is hard to defend replacing democracy with pretty much anything else. The same might be said of modern aggregate litigation: it is the worst form of resolving mass harms except for all those other forms that have been tried from time to time. As with democracy, paradigmatic aggregate litigation (class actions and multi-district litigation (MDL) actions) seem to be under perpetual threat, as critics, lawmakers, rulemakers, and judges seek to limit their scope, weaken their effectiveness, or supply alternative means of resolution altogether. Bankruptcy has emerged in the past few decades as a viable forum for global resolution of mass claims that once were within the exclusive province of state and federal class actions and MDLs … (more)
[Robin J Effron, JOTWELL, 7 November 2022]
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