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A Regulatory Theory of Legal Claims

Posted by on Friday, January 27, 2017 in Articles, Volume 70, Volume 70, Number 1.

A Regulatory Theory of Legal Claims


Procedural law in the United States seeks to achieve three interrelated goals in our system of litigation: efficient processes that achieve “substantive justice” and deter wrongdoing, accurate outcomes, and meaningful access to the courts. For years, however, procedural debate, particularly in the context of due process rights in class actions, has been redirected toward more conceptual questions about the nature of legal claims—are they more appropriately conceptualized as individual property or as collective goods? At stake is the extent to which relevant procedures will protect the right of individual claimants to exercise control over their claims. Those with individualistic conceptions of legal claims tend to object to procedures that operate at the expense of claimant autonomy. Conversely, those who endorse collectivist views tend to downplay claimant autonomy. In the class action context, the debate between individualistic and collectivist views of legal claims has been waged as a proxy war between more fulsome and more limited availability of class procedures—a debate that has been rightly described as “intractable.”

This Article does not seek to resolve that debate, but to broaden it. The individualistic versus collectivist debate about legal claims arises not just in the class action context but in other contexts as well—a point long overlooked in legal scholarship.

Taking this broader view yields significant insights. It turns out that this conceptual debate has different implications for key normative questions in our litigation system and procedural law. For example, in the class action context, the individual-autonomy conception of legal claims is used as an argument for procedures that often frustrate access to justice. In litigation finance, individual-autonomy conceptions are critical to access. The debate between individualistic and collectivist conceptions of legal claims thus does not point consistently to any set of normative goals, but instead it cuts in precisely opposite directions.

Two central insights emerge from this stalemate. First, formalist theories of legal claims provide a poor baseline for determining the scope of litigant autonomy and for guiding procedural law. Second, they should be replaced by a theory for legal claims that not only accounts for, but also better aligns with, foundational normative goals of our litigation system.

This Article therefore proposes a regulatory theory of legal claims, which has three fundamental components. First, and drawing upon intellectual foundations of property, economic, and litigation theory literature, this Article posits that litigant autonomy over legal claims—though a strong norm—can be regulated in appropriate instances. Second, it provides a theoretical basis for the notion that the judiciary may appropriately regulate litigant autonomy over claims, including through procedural mechanisms. Third, it sets forth a key component of an overall theory of procedure itself—specifically, as appropriately directed toward regulating litigant autonomy to reduce transaction cost barriers to claiming. By then operationalizing this theory within various litigation contexts, this Article demonstrates in concrete ways how its regulatory theory of legal claims points a way forward on the resolution of numerous difficult questions in today’s litigation landscape.


Associate Professor, Georgetown University Law Center.