An Opt-In Option for Class Actions

45 Pages Posted: 17 Feb 2016 Last revised: 11 Nov 2016

See all articles by Scott Dodson

Scott Dodson

University of California Hastings College of the Law

Date Written: February 16, 2016

Abstract

Federal class actions today follow an opt-out model: absent an affirmative request to opt out, a class member is in the class. Supporters defend the opt-out model as necessary to ensure the viability of class actions and the efficacy of substantive law. Critics argue the opt-out model is a poor proxy for class-member consent and promotes over broad and ill-defined classes; these critics favor an opt-in model. This bimodal debate — opt out vs. opt in — has obscured an overlooked middle ground that relies on litigant choice: Why not give the class the option to pursue certification on an opt-out or an opt-in basis? This article explores such an opt-in option. It considers the effects of opt-in classes’ enhanced cohesiveness and representational character on the ease of class certification, the logistical challenges of opt-in mechanisms and the technological advances that can mitigate those challenges, the doctrinal feasibility of allowing an opt-in option, and the potential pitfalls the option presents. The article concludes that the opt-in option has positive potential, and it offers specific proposals for rule makers to consider.

Keywords: rule 23, class action, ascertainability, opt-out, opt-in, rule amendment

Suggested Citation

Dodson, Scott, An Opt-In Option for Class Actions (February 16, 2016). 115 Michigan Law Review 171 (2016); UC Hastings Research Paper No. 169. Available at SSRN: https://ssrn.com/abstract=2733450

Scott Dodson (Contact Author)

University of California Hastings College of the Law ( email )

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San Francisco, CA 94102
United States
415-581-8959 (Phone)

HOME PAGE: http://www.uchastings.edu/faculty/dodson/index.php

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