In Print: Volume 85: Number 4
The Class Action As Political Theory
By Martin H. Redish, Clifford W. Berlow
85 Wash. U. L. Rev. 753 (2007)
(PDF)
Since the advent of the modern class action, academics and jurists have struggled to articulate the precise scope of and rationale for this peculiar mode of litigation. In a certain sense, class actions give rise to an anomalous situation in the American tradition of civil adjudication by allowing one person to litigate the individual claims of an entire group of people in a single proceeding without their explicit endorsement of or participation in the litigation. Paradoxically, the absent class members are simultaneously full participants and total non-participants in the litigation. The academic literature examining this form of litigation has portrayed the class action at times as a savior, bringing about justice in an otherwise flawed system of individual adjudication, and other times as a villain, serving to artificially expand defendant liability and create a specialty practice for entrepreneurial plaintiffs’ lawyers. At the heart of these tensions lies an awkward mechanism for collective adjudication of passively enforced individual claims within a civil justice system largely designed for the purpose of vindicating actively pursued, individually held claims.
Although there is little consensus in class action scholarship as to why this island of collectivism exists in a sea of individualized dispute resolution, there is near universal agreement that modern society necessitates the existence of some tool for the bringing of mass collective suits. Few doubt that “some litigious situations affecting numerous persons ‘naturally’ or ‘necessarily’ call[] for unitary adjudication.” The major issues in the class action debate center on how courts determine precisely when those situations arise and what control the class members retain over the adjudication of their individual claims.
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