What Goes Around, Comes Around: From the Rector of Barkway to Knowles

Abstract

The paper discusses the history of class actions since 1199 through the Supreme Court’s Class Action Fairness Act decision in State Fire Ins. Co. v. Knowles. The purpose of this trip down the historical lane is to see whether such history can tell us anything about current controversies about the class action. The history tells us that the controversies date back to the origins of the class action device. And they provide a reason why today’s proposed solutions are essentially the same as they always have been. The paper argues that even though representative actions have evolved, Rule 23 has been amended several times, and CAFA was enacted to solve various problems, it is impossible to cure all the issues that class action practice creates. At heart, this is a substantive debate about whether people should be able to sue in groups — and bind absent parties — to enable some private enforcement of the law, or whether our distaste for the large attorneys’ fees at stake in private class actions and our fears of collusion between class counsel and defendants eager to cut a deal to the detriment of the class are so strong that we are willing to risk letting corporations and government get away with harmful conduct.