Class Actions in the Administrative State: Kalven and Rosenfield Revisited
40 Pages Posted: 16 Sep 2007
This article, one of several for the seventy-fifth anniversary volume of the University of Chicago Law Review, assesses the intellectual contribution of Harry Kalven, Jr. and Maurice Rosenfield's 1941 article in that journal on "The Contemporary Function of the Class Suit." Kalven and Rosenfield anticipated what would emerge thereafter as among the most distinctive features of the American civil justice system: the elaboration, in parallel, of both private class action litigation and public enforcement by the administrative state.
Whereas Kalven and Rosenfield sought to delineate the "contemporary function" of the class action, the agenda for the law today consists of resolving two contemporary dilemmas to which that function has given rise. The first dilemma speaks to the tension between the class action device as a vehicle for privatized enforcement and the allocation of authority within the United States along both federal-versus-state and public-versus-private lines. The challenges for the law today in these regards consist of addressing two situations that are the converse of each other. The first consists of what one might describe as a class in search of a settlement; the second involves a settlement in search of a class. Recent developments from the Class Action Fairness Act to the controversial employment discrimination class action in Dukes v. Wal-Mart, Inc. are discussed in this light.
The second dilemma stems from the recognition that settlements, not adversarial trials, stand as the endgame for class actions. Here, there is a need both for finality by way of class settlements and for attentiveness to the process due to absent class members. Kalven and Rosenfield's comparison of class actions and the administrative state has the potential to set longstanding debates over due process for absent class members on a new path. Current doctrine casts the basis for preclusion of class members in terms of a mixture of protections in the nature of individual autonomy (rights to participate and to opt out) and fiduciary oversight (from both class counsel and the rendering court). Since the early twentieth century, however, procedural thinking in connection with the administrative state has focused less on the individual autonomy familiar to one-on-one litigation and more on measures to hew - if only roughly - the loyalties of regulators over time to the interests of those they purport to serve. In an era when empirical research has documented the rarity with which rights of individual autonomy are actually exercised in class actions, the law of due process in that sphere would benefit from redirection along lines familiar to the administrative state. The article closes with analysis of some promising developments along these lines, with reference to the emerging literature on positive political accounts of the administrative state.
Keywords: administrative state, Class Action Fairness Act, class actions, due process, positive political theory, settlement, Wal-Mart
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