That's the name of this article by law professors Myriam Gilles and Anthony Sebok. Here's the abstract:
Class
actions are in decline, while arbitration is ascendant. This raises the
question: will plaintiffs’ lawyers skilled in bringing small-value,
large-scale litigation – the typical consumer, employment, and antitrust
claims that have made up the bulk of class action litigation over the
past forty years – hit upon a viable business model which would allow
them to arbitrate one-on-one claims efficiently and profitably. The
obstacles are tremendous: without some means of recreating the economies
of scale and reaping the fees provided by the aggregative device of
Rule 23, no rational lawyer would expend the resources to develop and
arbitrate individual, small-value claims against well-heeled defendants.
But despite these complications, we think there are at least two
possible models that might allow for informal aggregation of like
claims in at least some subset of cases.
One hybrid model
would seek a judicial liability judgment upon which serial, individual
arbitrations could later rely. This judgment could take a number of
different forms – whether a declaratory class action judgment or a
decision rendered in a public enforcement action – so long as it has
preclusive force that can be leveraged in subsequent arbitration
hearings. A second, complementary model envisions “arbitration
entrepreneurs” (either lawyers or non-lawyers) purchasing
legally-identical, individual claims which our legal capitalists believe
to have value in the arbitral forum. Upon procuring as many discrete
claims as the market will bear, the arbitration entrepreneur would seek
to resolve the hundreds or even thousands of claims she has amassed in a
single arbitral session. With one arbitration entrepreneur as the
lawful owner of a multitude of claims, this form of aggregation
implicates neither the prohibition against class arbitration nor the
contractual definition of “a claim” subject to arbitration.
The
hybrid model and the claims-buying model may work independently or
synergistically, depending on the case, the form that the public
declaration of liability takes, and the incentives of the lawyers and
entrepreneurs involved. For example, in the appropriate case,
claims-buying entrepreneurs may determine that a (b)(2) declaratory
judgment class action creates more and better opportunities to bundle
and capture claims than market forces alone. Similarly, lawyers who
obtain a judgment under the hybrid approach may determine that the best
way to monetize this victory is to buy up many claims for collective
arbitration. Indeed, these models present a host of possibilities, and
an equal number of potential challenges; this paper is but a first step
in describing and analyzing the benefits and costs of these approaches.
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