Divided Selves

In a wonderful New Yorker piece, James Surowiecki surveys recent literature on the problem of procrastination.  What I found fascinating about the piece is the idea, mostly popular among philosophers, but also some economists and psychologists, that procrastination may represent a conflict between two versions of yourself  - your present self and your future self.  That is, our present self may prefer to avoid doing something - studying for an exam, say, or writing a law review article - that would benefit your future self.  

I bring this up to address one issue with mandatory class actions I have so far left unresolved.  Previously I noted that mass torts are rife with internal conflicts.  For example, in asbestos litigation, the "presents" want to recovery as quickly and as much as possible, but the "futures" want to make sure that there are funds available for them should they manifest injury.  But how does the mandatory class action resolve this conflict?  In fact, by forcing individual plaintiffs to litigate collectively when they would be better off going alone, isn't the mandatory class action only making things worse, by, in effect, forcing the "high" value claims to subsidize the "low" value claims?   As I argue in my draft "Mass Torts and Due Process," focusing on conflicts among class members obscures a more fundamental conflict.  Like procrastination, mass torts primarily involve an intertemporal conflict within each class member.

What do I mean by that?  If you view the mass tort situation ex post, or after the mass tort has already occurred, you see a large number of dispersed plaintiffs who conflict in a number of ways.  But consider the mass tort from the perspective of the plaintiffs ex ante, or before the tort occurs.  From this perspective, a plaintiff will not know if she will get injured.  Instead, she will only know that she will be part of a population that may be potentially injured by the defendant.  In the asbestos context, for example, the tort involved the production of asbestos-containing products, but before deployment of these products into the world, the individuals within the exposed population (pipefitters, schoolchildren) don't know if they will actually get injured, and, if so, how (pleural plaques or lung cancer). 

Ideally, before the tort occurs, the pipefitters and the schoolchildren would just negotiate with the manufacturers.  Please don't make asbestos products at all, or at least warn us to wear a mask!  But this is difficult to do given the numerosity and the dispersion of the plaintiffs.  There are too many of them and they are dispersed with respect to place (all over the country) and time (differing latency periods). 

You can, however, reflect what the plaintiffs would have bargained for through the use of liability.   In other words, the threat of compensatory damage suits can deter the defendant from using asbestos in its products, or at least add warnings, which would mimic what the plaintiffs would have bargained for.  In fact, in more fine-grain contexts, the threat or imposition of liability can lead the defendants to take optimal precautions among different safety options.  Of course, the resort to liability to mimic what would have been bargained for is a second-best solution, and may in fact be pointless in situations where individuals can, in fact, negotiate for safety features, although the case for the use of liability even in such cases is there, if uneasy.

If we have to resort to a second best solution, there is still a question as to which procedures an individual would prefer ex ante.  Ex ante, a plaintiff would prefer a mandatory class action.  Because he or she is uncertain as to what position he or she would occupy after the tort occurred (injured, noninjured, "present," "future"), a plaintiff would prefer trying to deter the defendant as much as possible.  From this perspective, it is better to avoid the tort as much as possible than suffer an increased risk of injury coupled with a "lottery ticket" to sue for damages.  A mandatory class action will get a plaintiff optimal deterrence because it threatens the imposition of the defendant's total liability. 

However, ex post, or after the tort has already occurred, a plaintiff may prefer to go alone rather than participate in a mandatory class action.   Why would that be the case?  Ex post, the plaintiff will know his or her situation, and once that position is revealed to the plaintiff, it may make more sense to go alone.  Notice, moreover, that going alone will destroy the mandatory class action necessary to optimally deter the defendant.  But ex post the tort has already happened, so the plaintiff rationally will not care about the deterrent effect of the mandatory class action.

In short, when one considers each plaintiff's interest ex ante, each plaintiff will prefer a mandatory class action, while that may not be the case ex post.   Thus, the question of whether to use a mandatory class action or not really reflects an internal conflict between each plaintiff's "present" self and "past" self, so to speak.  In fact, a plaintiff would prefer to listen to his or her "past" self simply because avoiding injury is better than compensated injury, given the prevalence of nonpecuniary losses like death and pain and suffering.

Now, the "tragedy" of the mass tort context is that we can't give priority to the plaintiff's "past" self.  Just as bargaining ex ante is impossible, allowing plaintiffs to tie themselves to the mast of their ex ante preferences, such as by contract, is impossible as well.  Thus, to reflect the priority of each plaintiff's "past" self, a judicial intervention is needed in the form of a mandatory class action.  

Notice that reframing the conflict from one among plaintiffs to an internal one within each plaintiff individualizes the problem.  Instead of a problem of distribution, the problem is really, like procrastination, one of self-defeating behavior.  In fact, the resulting distributional problem is really secondary to the preference by the plaintiffs to avoid the tort in the first place!  This has a number of implications for the law of procedural due process, which I will discuss in subsequent posts.