Friday, January 22, 2010

Redish on Whether Class Actions are Unconstitutional

Both the ABA Journal and Forbes have recently featured Professor Martin Redish's book, Wholesale Justice.  As he points out in a comment to the ABA article, both pieces "somewhat overstate and simplify my position.  I do not really suggest that class actions are inherently unconstitutional."  The book itself is an interesting meld of class action theory, constitutional theory, and democratic theory.  Although it's impossible to summarize the book in a short blog post, here's a quote from page 231 in which he recommends three pivotal changes:

The major constitutionally dictated changes would be (1) the settlement class action (i.e., a proceeding in which certification has been sought solely on the condition that the court approve a prearranged settlement) would be held to contravene the case-or-controversy requirement of Article III; (2) all mandatory classes, with the possible exception of the (b)(1)(A) category involving situations in which inconsistent behavior on the part of the party opposing the class toward individual class members would be either impossible or unduly oppressive, would be deemed violations of the Due Process Clause; and (3) the existing opt-out structure for (b)(3) classes would be found both to violate due process and to depart from key notions of democratic theory, except in situations in which the individual claims, though sufficiently large to reasonably justify the filing of a claim form as part of a settlement or judicial award, would be insufficiently large to justify individual suit.

For the interested reader, Sam Issacharoff has written a number of articles that provide a counterpoint to Redish's arguments.

ECB

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