Wednesday, October 23, 2013

McKenzie on Helpless Groups (in Bankruptcy and Beyond)

Troy A. McKenzie, New York University School of Law, has posted “Helpless” Groups, which is forthcoming in the Fordham Law Review 81 (2013).  Here is the abstract:
William O. Douclas (LC)
This Essay confronts the idea of the “helpless” group — that is, the group comprising individuals who are thought to be incapable of protecting their own interests. That idea plays an important role in the history of the modern class action, which has been justified as a device providing redress for “small claims held by small people.” The rhetoric of helplessness did not begin with the class action. Instead, the concern about helpless individuals corralled into a group and preyed upon by their adversaries (and their own lawyers) originated in the world of business bankruptcy before it made its way to the world of the class action. The Essay traces the history of the helpless group in business bankruptcy cases and describes the influence of that history on the development of the modern class action. Bankruptcy, however, has shifted away from the perception that claimants are helpless to protect themselves in the process — a shift that explains the creation of committees and other forms of group representation in modern Chapter 11 practice. The Essay considers whether similar forms of group representation may serve a role in aggregate litigation outside the class action.