Class Actions: The Class as Party and Client

Abstract

This article, which focuses on plaintiff class actions involving mass torts, posits two models for analyzing and evaluating class actions: (1) an "aggregation" model that recognizes the value of joining forces in a plaintiff class but also attempts to retain as much individual autonomy and control as possible in the prosecution of the action, and (2)an "entity" model, which regards the class itself as the litigant and the client.

While recognizing that neither of these models is fully descriptive of actual class actions as they have evolved, the article argues for adoption of the entity model on a number of substantive and procedural grounds.

The article then considers a range of practical consequences that would flow from adoption of the entity model. These consequences include the grounds for certifying all or part of a dispute as appropriate for class treatment; the scope of the right to notice and to opt out of the class; questions of the relations among the class, its members, and the attorneys representing the class; the proper role of the judge; and the applicable rules of substantive law. On an institutional level, the article considers the implications of the entity model with respect to the allocation of authority between the federal government and the states, to the choice between adjudication and rulemaking as techniques of law declaration, and to the choice between between courts and legislatures as appropriate rulemakers.