David Marcus


Using examples from the law of res judicata, class actions, and personal jurisdiction, I show how the model of the civil litigant that a decision maker chooses to embrace has significant implications for procedural design. I also question whether the Roberts Court’s autonomous individual model should have prevailed to the extent that it has. Judge Weinstein’s procedural vision harkens from another era, one that tolerated creative procedural experiments as courts tried to harness litigation to respond to problems of a mass, globalized economy and society. This time has ended, but whether it should have lapsed remains unsettled. The Roberts Court’s procedural approach lacks a sufficient doctrinal, historical, or normative foundation to reject so decisively Judge Weinstein’s community member model.