When one hears the term aggregation in civil litigation, the long-running debate over class actions comes to mind. Viewed within its own terms, that debate tends to convey the impression that the world neatly divides itself into the mass effects somehow unique to class actions on the one hand and the confined realm of one-on-one litigation on the other. In the midst of this debate, a closely related set of issues has gone curiously underexplored.
Here, the concern is not over some deviation from the one-on-one lawsuit. Rather, the basic suggestion is to circumscribe what an ostensible individual action may do in order to prevent it from exerting some manner of binding force upon broadly similar nonparties. The idea, in other words, is to constrain what individual litigation may do, precisely because it is not a “de facto class action” empowered to affect the rights of nonparties.
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