Tuesday, March 5, 2013
David Marcus (University of Arizona) has posted The History of the Modern Class Action, Part I: Sturm und Drang, 1953-1980 on SSRN.
The U.S. Supreme Court’s recent and intensive engagement with class action doctrine has changed the device for claim aggregation significantly. The first era in the history of the modern class action, which began with the revision of Rule 23 in the 1950s and 1960s, may be ending. If so, the class action’s remarkable story deserves telling. This Article provides the first chapter, explaining how class action doctrine coalesced just moments before the great social and political strife of the 1960s, provoked a heated political war within a couple of years of its emergence, and finally stabilized by the end of the 1970s.
After telling the story of the revised Rule 23’s origins, I describe the emergence of the fiery class action politics of the late 1960s and early 1970s. Combatants clashed over two competing conceptions of the new device. Advocates for plaintiffs’ interests championed a “regulatory conception” of Rule 23: Courts and lawmakers, they insisted, should treat the class action as a mechanism designed to boost the regulatory force of the substantive law. Decision-makers should apply Rule 23 flexibly, to recognize that the class action played a key role in new regulatory strategies pursued in the 1970s. Corporate interests and their allies countered with an “adjectival conception” of the class action, or an understanding of the device that conceived of it as a joinder rule like any other. They argued that courts should limit the class action strictly, lest a mere procedural rule significantly distort the role that civil litigation properly played in American government.
The clash between these conceptions of Rule 23 offers a way to understand doctrinal evolution during the first chapter of the device’s modern history. Congress and federal rulemakers were unable to resolve the conflict between the regulatory and adjectival conceptions. The federal courts, however, did so successfully. Using a pragmatic balancing strategy in each substantive area affected by class actions, the federal courts preserved Rule 23’s regulatory force while insisting that class litigation not deviate too far from more traditional models of civil adjudication. This strategy stabilized class action doctrine by the end of the 1970s, laying a foundation for far more adventurous uses of the device in the 1980s and 1990s.