The History of the Modern Class Action, Part II: Litigation and Legitimacy, 1981-1994

80 Pages Posted: 9 Aug 2017

See all articles by David Marcus

David Marcus

University of Arizona - James E. Rogers College of Law

Date Written: August 8, 2017

Abstract

The first era of the modern class action began in 1966, with revisions to Rule 23 of the Federal Rules of Civil Procedure. It ended in 1980. Significant turmoil roiled these years. Policymakers grappled with the powerful device as advocates argued over its purpose, and judges struggled to create rules for the novel litigation the remade Rule 23 generated.

This article tells the story of the class action’s second era, which stretched from 1981 to 1994. At first blush, these were quiet years. Doctrine barely changed, and until the early 1990s, policymakers all but ignored the device.

Below this surface tranquility lurked important developments in what the class action, newly embroiled in fundamental debates over litigation and legitimacy, was understood to implicate. Critics castigated the civil rights class action as an emblem of the “imperial judiciary’s” rise and of courts’ inability to separate law from politics. To industries targeted by plaintiffs’ lawyers, the securities fraud class action exemplified the “litigation explosion” and challenged judicial competence to screen for meritorious lawsuits. The emergence of the mass tort class action as an alternative to legislative and administrative processes made a determination of litigation’s legitimate role particularly urgent.

These second era episodes deepened partisan divides over the class action and prompted new claims about what sort of private litigation could legitimately proceed. The three episodes drew new and influential participants into fights over the class action, and they eventually re-engaged policymakers with its regulation. Such developments made a third era, one of significant reform, all but inevitable.

Keywords: class action, mass torts, civil rights class action, imperial judiciary, securities fraud, litigation explosion

Suggested Citation

Marcus, David, The History of the Modern Class Action, Part II: Litigation and Legitimacy, 1981-1994 (August 8, 2017). ___ Fordham Law Review ___ (2018 Forthcoming); Arizona Legal Studies Discussion Paper No. 17-17. Available at SSRN: https://ssrn.com/abstract=3015581

David Marcus (Contact Author)

University of Arizona - James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States

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