Class Actions and the Counterrevolution Against Federal Litigation
University of Pennsylvania Law Review, Vol. 165, No. 1495, 2017
36 Pages Posted: 24 Jun 2015 Last revised: 17 Oct 2017
Date Written: 2017
In this article we situate consideration of class actions in a framework, and fortify it with data, that we have developed as part of a larger project, the goal of which is to assess the counterrevolution against private enforcement of federal law from an institutional perspective. In a series of articles emerging from the project, we have documented how the Executive, Congress and the Supreme Court (wielding both judicial power under Article III of the Constitution and delegated legislative power under the Rules Enabling Act) fared in efforts to reverse or dull the effects of statutory and other incentives for private enforcement. We focus here on one particular instrument of private enforcement, but we do so in the light of our broader research. We begin with a sketch of the modern class action. We then consider how attempts to curb its enforcement potential have fared in the elected branches, at the hands of those who brought it forth – the Advisory Committee on Civil Rules – and, finally, in the decisions of the Supreme Court. We conclude that institutional patterns in the domain of class actions largely track the story we discern in our larger project: the Supreme Court has been, by far, the most effective institutional agent of retrenchment.
Keywords: Empirical legal studies, Federal Rules of Civil Procedure, rule 23, litigation, private enforcement of rights, legislation, rulemaking, politics and ideology of the judiciary, polarization, Supreme Court of the United States, conservative legal movement, class action certification, attorney fees
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