The Lawlessness of Aggregative Torts
Aggregative torts rely on nontraditional theories of liability in which collective, rather than individual, interests are paramount. All legal rules are to some extent aggregative in that they purport to treat all similarly situated persons alike. But traditionally, in most instances involving allegedly tortious conduct, individual rights are deemed to be invaded and the claim for recovery is personal to the individual victim. Some legal actors such as partnerships and corporations embody formal aggregations of interests even though they are treated as singular entities for tort liability purposes. And modern systems of civil procedure allow for the procedural aggregation of individual claims via class actions and other forms of consolidation. But while class actions sacrifice individual autonomy in collective claiming processes to achieve consistent outcomes and economies of scale, the underlying claims remain individual in nature. Indeed, the elements of most traditional torts are sufficiently unique to individual claimants that they preclude the commonality required for class certification.