Back in 2010, noted legal scholar Marc Galanter wrote an article on “The Dialectic of Injury and Remedy.” It contains only one explicit mention of class actions, but, in general, touches on some points that recur frequently for class action lawyers.
Professor Galanter’s primary argument is that both injuries and remedies are socially constructed. That’s a point that should come as no great shock to lawyers: we spend our careers engaging with a very specific and well-known social construct. But Professor Galanter zeros in on the fact that, like many social constructs, ideas about injury and remedy change over time. Things that the ordinary citizen would have accepted as just plain bad luck a generation ago now—because of advancing technology, changed social attitudes, or an increase in litigiousness, take your pick—are considered injuries that require legal remedies.
Or, as he puts it:
So injury and remedy are not fixed and determinate, but moving and changing. Is this change random, or is there a pattern? Is there some force driving the moving frontier? These questions take us back to naming and blaming—to changing perceptions of injury and changing attributions of responsibility for causing injury and providing remedy. In the long run, new ways of envisioning and understanding troubles and remedies are the hidden fount and engine of our expanding sense of injustice.
Crudely, our sense of legal injury and remedy reflects the changing capabilities of human society. Human inventiveness, accumulated in science, technology, and social organization, has enlarged our capacity to prevent and address many kinds of harm. Think of inoculations, electrical insulation, and safer aircraft. As more things are capable of being done by human institutions, the line between unavoidable misfortune and remediable injury shifts. The realm of injury is enlarged.
(Emphasis added, footnote omitted.)
Why is this sociological observation important to class action lawyers? Because the evolution of the class action, which we often attribute to “adventuresome” plaintiffs is just as attributable to changes in the understanding of injury and remedy. And frequently, certification opinions hinge on whether the judge believes that there is an injury that requires a class action to remedy it. The classic cases Castano v. American Tobacco Co. and In re Rhone-Poulenc Rorer grappled with the concept of the “immature tort”; really just a question of whether a novel injury theory (“addiction” for Castano, “serendipity” for Rhone-Poulenc Rorer) could justify aggregating a series of personal-injury lawsuits into bet-the-industry litigation. And it’s not hard to read the Dukes opinions, both majority and dissent, as arguing over whether being subjected to a corporate culture that was “vulnerable” to gender discrimination could support a class action.
Novel theories of injury are, in short, one of the chief engines of the class action. And so it is vitally important that class action lawyers learn to question the injury theories that show up in complaints.
Professor Galanter’s argument is largely neutral on whether the expansion of our understanding of injury is a good thing; he treats it more as a historical inevitability. But he does offer three observations about “the future of injury,” all of which are worth some attention.
First, he points out that, because we tend to construct injuries by analogy, the more injuries we recognize, the more we are likely to find, even if we are remedying the many we already know about. This counsels against recognizing too many inventive injuries today. Second, he points out that the more injuries we find, the more we will be forced to ration out remedies. Society’s resources are finite, after all. This is a powerful point for defense lawyers; providing a legal remedy for a largely theoretical or unrecognized injury takes up resources that could be used to better effect somewhere else. Third, because our understandings of injury and remedy shift over time, some seemingly frivolous claims may become mainstream in the future. But, by the same logic, other claims that seem to make sense now will seem foolish in a few years’ time. The trick is to recognize the trajectory various injuries and remedies are on, and, where appropriate, to call that to the court’s attention.
As its title suggests, “The Dialectic of Injury and Remedy” is not completely free of academic jargon. But, for the most part, it’s written in deceptively simple prose. It’s well worth the look for any class action lawyer who needs to wrap her head around arguing cutting-edge theories of injury or damages.