William B. Rubenstein, A Transactional Model of Adjudication, 89 Geo. L.J. 371 (2001).
Abstract: This Article defines a new way of thinking about adjudication. American procedural theory encompasses three familiar models of adjudication: the traditional adversary system model; a model of public law litigation that describes large civil rights cases; and a model of managerial judging that attempts to account for the increasing judicial emphasis on settlement, as opposed to adjudication. None of these models, however, can explain much of contemporary class action litigation. A new model of civil litigation has emerged: a transactional model. The large, sprawling class action lawsuits that occupy the current procedural domain have more in common with business deals than they do with traditional adversarial litigation, legislative activity, or executive management. The salient attributes of contemporary class actions are most familiar in transactional terms: (1) Defendants purchase a commodity - finality. They buy from the plaintiffs' representative the plaintiffs' rights to sue. (2) The attorneys' activities are primarily business-oriented, not legal, in nature. They negotiate and structure large financial arrangements. Traditional litigation work - client meetings, legal research, discovery, motion practice, brief drafting, oral argument, trial - is of secondary importance. (3) The familiar signposts of adjudication - pleading, discovery, and trial - are of minor importance. Pleadings often do not initiate adjudicatory activity, but rather succeed the finalization of the transaction, and rarely do they frame the nature of the dispute as much as they reflect the nature of the deal. Huge transactions take placed based on discovery from other cases, or no discovery at all. Trial is rarely contemplated. (4) Judges broker deals, they do not adjudicate cases or even simply manage settlements. (5) The desire for nationwide deals and global peace has displaced familiar sovereign boundaries on the judicial capacity and function. This Article demonstrates the failure of current doctrinal and theoretical frameworks through an in-depth analysis of three recent Supreme Court cases - Amchem & Ortiz (mass tort class actions) and Matsushita (securities class actions ). The Article then describes the new transactional model, making the case for conceptualizing large, private law class action lawsuits as commercial transactions. The Article demonstrates the descriptive and explanatory value of such a model. The Article concludes by considering some of the normative questions raised by the adjudicatory developments.