Troy A. McKenzie
New York University School of Law
October 14, 2013
Fordham Law Review, Vol. 81, 2013
NYU School of Law, Public Law Research Paper No. 13-69
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.
Number of Pages in PDF File: 21
Date posted: October 20, 2013