Comments on a Class Action Rule for Mississippi

Abstract

In an accompanying article for this symposium, I argue that Mississippi should adopt a class action rule. This paper offers specific suggestions on the contents of that rule, and comments on the papers by David Rosenberg and John Scanlon and by Robert Klonoff. Mississippi should adopt a rule that, like the federal rule, permits opt-outs in most money damages class actions but provides for mandatory class actions in a narrow band of cases. Rosenberg and Scanlon overestimate the danger of opt-outs for optimal deterrence, while underestimating the usefulness of opt-outs. The paper comments on Klonoff's positions on various aspects of class action rule drafting. Finally, the paper offers suggestions on how to address what may be the greatest obstacle to adoption of a class action rule in Mississippi - mistrust of judicial authority and a reluctance to expand judicial power. By restricting venue options, facilitating appellate review, and setting forth clear obligations for processes and findings, Mississippi can gain the advantages of the class action procedure while reducing the possibility of abuse.

Keywords: class action, Mississippi, opt-out, Rule 23, venue, judicial abuse

JEL Classification: K40, K41