Separation of Powers and the Class Action

67 Pages Posted: 13 Aug 2014 Last revised: 15 Jun 2018

See all articles by Mark Moller

Mark Moller

DePaul University - College of Law

Date Written: August 13, 2015


The scope of constitutional protection afforded “litigant autonomy” — that is, claim owners’ ability to control their own claims — is one of the most hotly debated questions in all of class action law. Participants in this debate, though, share an unstated assumption: The source of constitutional protection for litigant autonomy begins and ends with due process.

This Article challenges that assumption by rotating the way we view litigant autonomy. Yes, litigant autonomy is a due process-protected interest. But it is also a building block of our system of limited federal jurisdiction, which exploits litigant autonomy to check against federal consolidation. Jurisdictional rules do so by giving claim owners substantial power to use control of their claims to dodge federal court — through, for example, their selection of the theory of the case and their control over party structure. The trajectory of modern mass torts reveals how significant this check is: when each person injured in a mass tort controls her own claim, substantial chunks of litigation inevitably radiate out of federal courts’ reach into state court as litigants leverage their claim control to park their claims there. Class actions, indeed, are such a potent force for federal consolidation in no small part because they override class members’ ability to exploit the jurisdictional power of claim control.

By focusing on litigant autonomy’s jurisdictional role, this Article opens a new way of thinking about the source of constitutional protection for litigant autonomy — one rooted in some familiar separation of powers and federalism principles, rather than due process. Along the way, it also plugs a gap in the theoretical literature on class actions: While class action scholars almost uniformly agree due process, by itself, can’t justify the Court’s narrow approach to class certification, they haven’t identified other constitutional principles that can convincingly ground the Court’s current class action jurisprudence. By approaching litigant autonomy from a new angle, this Article identifies one overlooked way to do so.

Keywords: class actions, mass torts, Rule 23, litigant autonomy, opt out rights, separation of powers, federalism, Class Action Fairness Act

Suggested Citation

Moller, Mark, Separation of Powers and the Class Action (August 13, 2015). 95 Neb. L. Rev. 366 (2016) . Available at SSRN: or

Mark Moller (Contact Author)

DePaul University - College of Law ( email )

25 E. Jackson Blvd.
Chicago, IL Cook County 60604
United States

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