Document Type

Article

Disciplines

Bankruptcy Law | Litigation

Abstract

Commercial actors long have argued that class actions are bad for business. But for even longer, business groups have supported other types of aggregate litigation that closely resemble class actions, such as expansive federal bankruptcy. While critics have successfully limited national aggregation via class actions, they have not even attempted to criticize aggregation via bankruptcy.

Why have business groups attacked aggregate litigation in some cases and supported it in others? This Article provides an answer by examining aggregation’s origins and development, and what emerges, it turns out, is very much the opposite of what aggregation’s pro-business critics would have us believe. Aggregate litigation is not bad for business—it was built for business. Lawmakers throughout history have provided aggregate litigation in response to demands and advocacy by wealthy commercial actors, who always have been aggregation’s foremost advocates and beneficiaries. Over time, different aggregate devices have emerged, prospered, and perished based on their benefits to contemporaneous market actors.

Aggregation critics never have grappled with this long history. When business groups criticize aggregate litigation, they are attacking a foundational tool of their own prosperity. Any assertion that group lawsuits stymie commercial enterprise is woefully incomplete if it does not account for the pervasive commercial need for aggregate litigation.

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