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Ending Class Actions as We Know Them: Rethinking the American Class Action

52 Pages Posted: 23 Jun 2014 Last revised: 15 Jan 2015

Linda S. Mullenix

University of Texas School of Law

Date Written: June 21, 2014

Abstract

Class actions have been a feature of the American litigation landscape for over 75 years. For most of this period, American-style class litigation was either unknown or resisted around the world. Notwithstanding this chilly reception abroad, American class litigation has always been a central feature of American procedural exceptionalism, nurtured on an idealized historical narrative of the class action device. Although this romantic narrative endures, the experience of the past twenty-five years illuminates a very different chronicle about class litigation. Thus, in the twenty-first century American class action litigation has evolved in ways that are significantly removed from its golden age. The transformation of class action litigation raises legitimate questions concerning the fairness and utility of this procedural mechanism, and whether class litigation actually accomplishes its stated goals and rationales. With the embrace of aggregative non-class settlements as a primary – if not preferred – modality for large scale dispute resolution, the time has come to question whether the American class action in its twenty-first century incarnation has become a disutilitarian artifact of an earlier time. This article explores the evolving dysfunction of the American class action and proposes a return to a more limited, cabined role for class litigation. In so doing, the article eschews alternative non-class aggregate settlement mechanisms that have come to dominate the litigation landscape. The article ultimately asks readers to envision a world without the twenty-first century American damage class action, limiting class procedure to injunctive remedies. In lieu of the damage class action, the article encourages more robust public regulatory enforcement for alleged violation of the laws.

Keywords: Rule 23, class actions, Advisory Committee on Civil Rules, 1966 class action rule, reform of class action rule, damage class action, injunctive relief class action, Rule 23(a) requirements, Rule 23(b) class categories, cy pres relief, reversionary provisions, attorney fees

Suggested Citation

Mullenix, Linda S., Ending Class Actions as We Know Them: Rethinking the American Class Action (June 21, 2014). 64 Emory Law Journal 399 (2014); U of Texas Law, Public Law Research Paper No. 565. Available at SSRN: https://ssrn.com/abstract=2457429

Linda S. Mullenix (Contact Author)

University of Texas School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States
512-232-1375 (Phone)

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