The Class Action as Political Theory

81 Pages Posted: 14 Dec 2007

Abstract

Up to now, the scholarly debate over the modern class action has focused largely on the comparative social and economic costs and benefits associated with the various possible roles that Rule 23 of the Federal Rules of Civil Procedure may play. Use of such a truncated approach has perpetuated among many scholars the view of the class action as a legal device capable of serving as a free roaming device designed to implement whatever result those in charge consider to be just. In this Article, we explore the class action from the perspective of normative political theory, considering its implications for the theories of liberalism, utilitarianism, communitarianism, and civic republicanism. Whatever position one ultimately takes on the modern class action, we believe that one must first take into account the manner in which the various approaches necessarily implicate one or another controversial political theory. We find that the modern class action inherently gives rise to a collectivist-individualist tension that potentially leads to troubling results for the normative foundations of liberal democratic theory. We conclude that, as a matter of normative political theory, the class action should be employed┬┐absent substantive legislative revision to the contrary - when and only when it facilitates the individual claim holder's ability to vindicate his or her substantive rights.

Suggested Citation

Redish, Martin H. and Berlow, Clifford, The Class Action as Political Theory. Washington University Law Review, Available at SSRN: https://ssrn.com/abstract=1071191

Martin H. Redish (Contact Author)

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

Clifford Berlow

affiliation not provided to SSRN ( email )

No Address Available

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