Class actions incite both delight and disgust. Several complementary themes in popular culture embrace the class action, including sympathy for underdog litigants challenging powerful malefactors, fascination with massive redistributions of wealth from corporations to individuals, and reluctance to permit large and influential wrongdoers to escape justice merely because of their size and clout. Class actions have thus become an appealing procedural counterweight to the burdens that modern society imposes on consumers and citizens, giving many little Davids a fighting chance for protection from or retribution against political and economic Goliaths. But class actions also expose and rile competing visions of the judicial system: suspicion of large-scale judicial proceedings, wariness of high-paid plaintiffs' lawyers, and a sense that society may subsidize the jackpot payouts that often result from group litigation and settlement. These crosscurrents of attraction and repulsion have propelled class actions to a level of political and academic prominence far exceeding the attention devoted to any other aspect of civil procedure.
Despite the critical attention focused on class actions, the debate over how best to reform them has not identified a conceptual flaw at the core of their design. Academic scrutiny of class actions over the past sixty years has usually built upon three overlapping themes: the potential utility and fairness (or disutility and unfairness) of aggregating individual claims as a solution to collective action problems that inhibit enforcement of substantive rights, the extent and significance of agency costs and diminished individual autonomy in representative litigation, and the relative roles that courts, legislators, and administrative agencies should play in redressing widespread injuries. These themes at an abstract level frame the debate over whether class actions are desirable as a matter of public policy, and at a technical level frame arguments for or against the myriad procedural reforms that scholars and legislators have proposed to expand, curtail, or manage class litigation. However, analysis of whether and how to reform class actions often overlooks a critical theoretical concept that has little direct connection to either the collective action, agency cost, or institutional role strands of class action scholarship. This Article seeks to correct that theoretical oversight, to explore some of its practical implications, and to demonstrate how rethinking the principles that animate class actions reveals a novel avenue of class action reform.
From "Predominance" to "Resolvability": A New Approach to Regulating Class Actions,
58 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol58/iss4/1