March 10, 2011
Are Class Actions Unconstitutional?
I've just posted a book review of Martin Redish's book Wholesale Justice: Constitutional Democracy and the Problem of the Class Action Lawsuit (Stanford U. Press 2009) to SSRN.
Here is a link to the review, entitled Are Class Actions Unconstitutional?
In Wholesale Justice, Martin Redish argues that class actions are unconstitutional and must be significantly reformed. The argument he presents is one that will surely be debated in courtrooms as well as classrooms and is especially significant given that the Supreme Court is hearing four major class action cases in the October 2010 term. After summarizing Redish's arguments, the review demonstrates that class actions are both constitutional and consistent with ideals of democratic accountability. In the end, the question is not whether the class action is constitutional (it is) but whether class actions are socially beneficial. This is a policy issue, not a constitutional one. Nevertheless, a broader point in Redish's book deserves serious attention. Too often procedures and remedies stealthily prevent the vindication of substantive rights. The appropriate solution to this accountability problem is a more robust public discussion of the relationship between rights and remedies.
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