Coming Attractions: Redish On Class Action Flaws

Here's one to keep an eye out for: Wholesale Justice,Constitutional Democracy and the Problem of the Class Action Lawsuit by Martin H. Redish.  Coming in the Spring from Stanford Univ. Press.

In recent years, much political and legal debate has centered on the class action lawsuit. Many lawyers and judges have noted the intense pressure to settle caused by the very filing of a class suit. Some contend that the procedure amounts to a form of judicial blackmail. The risk is greater when the number of claims aggregated in the class action is so large great that an adverse verdict would push the defendant into bankruptcy, for then the defendant will be under great pressure to settle even if the merits of the case are slight. Castano v. American Tobacco Co., 84 F.3d 734, 746 (5th Cir. 1996); In re Rhone-Poulenc Rorer, Inc., 51 F.3d 1293, 1298-99 (7th Cir.1995); Bruce L. Hay & David Rosenberg, “ ‘Sweetheart’ and ‘Blackmail’ Settlements in Class Actions,” 75 Notre Dame L.Rev. 1377, 1389-92 (2000). Plaintiffs counter that it is an effective means of policing corporate behavior and assuring injured victims' fair compensation.


According to the previews, this book represents a scholarly effort to view the modern class action comprehensively through the lenses of American political and constitutional theory. Redish argues that the modern class action undermines foundational constitutional principles, including procedural due process and separation of powers. He also asserts that the class action has been improperly transformed from its origins as a complex procedural device into a means for altering the controlling substantive law in highly undemocratic ways.  This despite the admonitions of a number of courts that the procedural device of Rule 23 should not be allowed to expand the substance of the claims of class members. Broussard v. Meineke Discount Muffler Shops, Inc., 155 F.3d 331 (4th Cir. 1998); see Cummings v. Connell, 402 F.3d 936, 944 (9th Cir.2005)(“It is axiomatic that Rule 23 cannot ‘abridge, enlarge or modify any substantive right’ of any party to the litigation.”); Blaz v. Belfer, 368 F.3d 501, 504 (5th Cir.2004)(“A class action is merely a procedural device; it does not create new substantive rights.” (quoting Frazar v. Gilbert, 300 F.3d 530, 545 (5th Cir.2002)), rev'd on other grounds sub nom., Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 124 S.Ct. 899, 157 L.Ed.2d 855 (2004)); Mace v. Van Ru Credit Corp., 109 F.3d 338, 346 (7th Cir.1997)(stating that “[t]he application of Rule 23 does not abridge, enlarge or modify any substantive right”); In re Baldwin-United Corp., 770 F.2d 328, 335 (2d Cir.1985)(stating that the federal class-action procedure set forth in Rule 23 “is a rule of procedure and creates no substantive rights or remedies enforceable in federal court”); Southwestern Refining Co. v. Bernal, 22 S.W.3d 425, 437 (Tex.2000) (holding that class action is procedural device which does not alter the substantive requirements of the underlying substantive claim); Winters v. Kan. Hosp. Serv. Ass'n, 1 Kan.App.2d 64, 562 P.2d 98, 101 (1977)(stating that Kansas' class-action statute “is a procedural statute” that “creates no substantive rights”).

Redish goes on to propose an alternative vision of the class action lawsuit, one that is designed to enable the device to serve its potentially  valuable procedural purposes in certain contexts without simultaneously contravening core precepts of American constitutional democracy.


Martin Redish is the Louis and Harriet Ancel Professor of Law and Public Policy at the Northwestern University School of Law.

 

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