'Helpless' Groups

21 Pages Posted: 20 Oct 2013

See all articles by Troy A. McKenzie

Troy A. McKenzie

New York University School of Law

Date Written: October 14, 2013


This Essay confronts the idea of the “helpless” group — that is, the group comprising individuals who are thought to be incapable of protecting their own interests. That idea plays an important role in the history of the modern class action, which has been justified as a device providing redress for “small claims held by small people.” The rhetoric of helplessness did not begin with the class action. Instead, the concern about helpless individuals corralled into a group and preyed upon by their adversaries (and their own lawyers) originated in the world of business bankruptcy before it made its way to the world of the class action. The Essay traces the history of the helpless group in business bankruptcy cases and describes the influence of that history on the development of the modern class action. Bankruptcy, however, has shifted away from the perception that claimants are helpless to protect themselves in the process — a shift that explains the creation of committees and other forms of group representation in modern Chapter 11 practice. The Essay considers whether similar forms of group representation may serve a role in aggregate litigation outside the class action.

Suggested Citation

McKenzie, Troy A., 'Helpless' Groups (October 14, 2013). Fordham Law Review, Vol. 81, 2013, NYU School of Law, Public Law Research Paper No. 13-69, Available at SSRN: https://ssrn.com/abstract=2340062

Troy A. McKenzie (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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