Class Action Myopia

Abstract

Over the past two decades, courts and commentators have often treated the class action as though it were a monolith, limiting their analysis to the particular class form that joins together a large number of claims for monetary relief. This Article argues that the myopic focus on the aggregated-damages class action has led to under-theorization of the other class-action subtypes, which serve far different purposes and have far different effects, and has allowed the ongoing backlash against the aggregated-damages class action to affect the other subtypes in an undifferentiated manner. The failure to confine this backlash to its intended target has had a negative impact on the availability of the other class forms, harming the interests of both litigants and the judiciary. In particular, in civil rights cases involving injunctive or declaratory relief, obstacles to class treatment pose a threat to remedial efficacy and the rule of law. Courts, lawmakers, and scholars should therefore engage in a broader analysis that takes into account all of the subtypes set forth in the modern class action rule.

Keywords: Civil Procedure, Complex Litigation