Joshua P. Davis
University of San Francisco - School of Law
February 1, 2011
George Washington Law Review, Forthcoming
Univ. of San Francisco Law Research Paper
Classwide recoveries can have various advantages over individual recoveries. They can, for example, allow plaintiffs to pursue litigation when individual actions would be uneconomical and they can make possible a statistical approach that is often not feasible in ordinary litigation. After noting these points, this Article explores subtler issues. In doing so, it focuses on situations in which classwide recoveries can do better than cumulative individual recoveries at imposing just the right amount of liability on defendants. The circumstances in which this benefit accrues are important: when some but not all members of a group suffered injury and identifying which members of the group were harmed is impossible or impractical. This issue has great significance. A recent controversy in class certification jurisprudence is whether plaintiffs must show harm to all or virtually all members of a proposed class to satisfy Feral Rule of Civil Procedure 23. This Article suggests a novel and counterintuitive thesis: class treatment and awarding classwide recoveries can be particularly valuable precisely when some courts have questioned the propriety of class certification.
Number of Pages in PDF File: 49
Keywords: class actions, civil procedure, class certification, Rule 23Accepted Paper Series
Date posted: February 24, 2011 ; Last revised: April 21, 2013
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