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Class Action Countermeasures Discussions of the Strategic Considerations Involved In Class Action Defense

Insights from Old Strategists – Mearsheimer and Offensive Realism

Posted in Strategy

John J. Mearsheimer is one of the foremost modern proponents of the theory of "offensive realism" in international relations. While he has written extensively on foreign policy and strategy, the best summation of his theory is in his 2001 book The Tragedy of Great Power Politics.  The theory, in a nutshell, is that great powers (like the United States and China) are ultimately doomed to resolve their differences in violent clashes. Why?

The structure of the international system forces states which seek only to be secure nonetheless to act aggressively towards each other. Three features of the international system combine to cause states to fear one another: 1) the absence of a central authority that sits above states and can protect them from each other, 2) the fact that states always have some offensive military capability, and 3) the fact that states can never be certain about other states’ intentions. Given this fear–which can never be wholly eliminated–states recognize that the more powerful they are relative to their rivals, the better their chances of survival.

According to Mearsheimer, this fear for survival inevitably pushes great powers into violent conflict with each other, and pursuing noble goals like spreading democracy will not prevent the tragic outcome.

This gloomy view of international relations is based on three core beliefs. First, realists, like liberals, treat states as the principal actors in world politics. Realists focus mainly on great powers, however, because these states dominate and shape international politics and they also cause the deadliest wars. Second, realists believe that the behavior of great powers is influenced mainly by their external environment, not by their internal characteristics. The structure of the international system, which all states must deal with, largely shapes their foreign policies. Realists tend not to draw sharp distinctions between ‘good’ and ‘bad’ states, because all great powers act according to the same logic regardless of their culture, political systems, or who runs the government. It is therefore difficult to discriminate against states, save for differences in relative power. In essence, great powers are like billiard balls that vary only in size.

Mearsheimer explains the implications of his theory throughout the book, and while I don’t agree with all his conclusions, he makes a persuasive case.  I’d heartily recommend it to anyone looking for a thoughtful take on international relations.

So why am I talking about this book in a blog about class-action strategy? Am I so dense as to argue that class-action plaintiffs and defendants are like great powers in the international system? Almost. I think Mearsheimer’s theory of "offensive realism" offers at least two insights to class-action defendants.

The first insight is that one doesn’t necessarily need to know what the other is actually thinking to make informed guesses about the strategy it will employ. I’ve written before about how, to defendants, plaintiffs’ lawyers’ motives often seem as opaque as the Soviet Union’s did during the Cold War.  As a result, it is worth looking at the constraints that plaintiffs’ lawyers face when trying to guess how they might act. Looking at the structure of the plaintiffs’ world (instead of at their motives) also helps defendants avoid the mistakes that can come with lazy demonizing. It doesn’t matter whether plaintiffs’ lawyers are "good" or "bad," what matters is how they react to their environment.

And that’s the second insight offensive realism can provide. I’m not so foolish as to argue that Mearsheimer’s theory describes class-action plaintiffs and defendants. But I do think it comes awfully close to describing class-action plaintiffs by themselves. (For a dissenting metaphor, see the Manhattan Institute’s various Trial Lawyers Inc. reports.) There is no central authority that regulates plaintiffs’ lawyers. In fact, a common complaint among defendants is that class-action plaintiffs’ lawyers are not even regulated by their clients. Every plaintiffs’ firm has some offensive capability (the ability to file lawsuits). And entrepreneurial plaintiffs’ counsel often must compete fiercely against each other. Given the need to grow or die, it’s no wonder that class-action firms file lawsuits that outside observers may consider meritless or overblown. The analogy is far from perfect, but frankly, it’s not a bad place to start.

 

  • http://tedfrank.com Ted

    Do we really need the Mearshimer overlay? Simple economic rationality explains everything Mearshimer does and more.

    Relatively meritless cases are filed because it’s potentially profitable to do so under existing de jure and de facto legal rules.

    Plaintiffs’ lawyers (as do defense lawyers) have every incentive to portray their internal value of the case as higher quality than they actually believe because it gives them additional leverage in settlement negotiations.

    Sunk costs mean that it’s usually more profitable to keep litigating a case that turns out to be relatively meritless than to drop the case before the eve of trial. Cf. the dollar auction.

    And finally, in a world of imperfect information, we would expect the attorneys who bring cases to be overconfident on average and overestimate the ex ante value of a case, because the underconfident ones are going to refrain more often. Cf. the winners’ curse.

    I don’t Trial Lawyers Inc. claims to be a model rather than a metaphor, but I agree it’s a mistake to view trial lawyers as monolithic. But that’s pretty obvious to any experienced defense counsel, no?

  • http://classactioncountermeasures.com Andrew Trask

    Hey Ted, always good to hear from you.

    Strictly speaking, one doesn’t *need* the Mearsheimer overlay, but then one also doesn’t strictly need Clausewitz to explain that the side with greater resources and greater “strength of will” (read, more cash and stronger desire to win) is likelier to prevail in litigation. I do think it can be helpful to attack some of these issues from as many perspective as possible. I also think that Mearsheimer’s work directs people to look more at how the competitive structure plaintiffs’ lawyers work in may influence them than simple economic rationality might.