The Misguided Search for Class Unity

67 Pages Posted: 25 Jul 2013 Last revised: 11 Jul 2014

Robert G. Bone

University of Texas School of Law

Date Written: May 2014

Abstract

This Article, written for a conference on class actions, focuses on a conflict lying at the core of federal class action law, between an “internal” and an “external” view of the class. The internal view sees the class as an artificial device constructed by the judge to achieve the functional goals of Rule 23. The external view sees the class as a group with a unity existing prior to the certification decision. This unity — or cohesiveness — is not a product of design choices made at the certification stage. Instead, it constrains those choices and might even scuttle certification when class treatment is otherwise desirable on functional grounds. While these two conflicting views have both influenced the shape of class action law, the external view has gained considerable ground over the past fifteen years. This recent trend is troubling for those who see the class action as a valuable aggregation tool, but it is promising for those who see the class action instead as a marginal device of questionable legitimacy.

The reason that the conflict produces such sharply divided views has to do with its connection at a deeper level to two competing normative models of the class action: an outcome-based model and a process-based model. The outcome-based model, to which the internal view is linked, focuses primarily on the benefits of class litigation for outcome quality, treats due process as a flexible constraint, and assumes that good outcomes go a long way toward satisfying due process values. The process-based model, to which the external view is linked, focuses on litigant autonomy and the day in court right, requires clear and strong outcome quality gains to justify class treatment, and confines the class action to classes with an internal group cohesion that is supposed to mitigate individual participation concerns and support the legitimacy of representative adjudication.

This Article first traces the internal and external views through class action history, and then describes the growing influence in recent years of an externally-defined “cohesive class” requirement and its impact on Rule 23. Four Supreme Court cases feature prominently in this story: Amchem Products, Inc. v. Windsor; Ortiz v. Fibreboard Corp.; Wal-Mart Stores, Inc. v. Dukes; and Comcast Corp. v. Behrend. The Article then critically examines the normative case for the external view and the process-based model and finds it seriously wanting. Two conclusions emerge from this analysis. First, if we are to make progress with the class action, the debates must be informed by a more rigorous account of due process and adjudicative legitimacy. Second, problems with the class action should be confronted directly rather than addressed indirectly through a cohesiveness requirement that sends courts on a hopeless and misguided search for class unity.

Suggested Citation

Bone, Robert G., The Misguided Search for Class Unity (May 2014). George Washington Law Review, Vol. 82, Forthcoming; U of Texas Law, Public Law Research Paper No. 520. Available at SSRN: https://ssrn.com/abstract=2297474

Robert G. Bone (Contact Author)

University of Texas School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States
512-232-5562 (Phone)
512-471-6988 (Fax)

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