The Liberal Case Against the Modern Class Action

25 Pages Posted: 22 Nov 2019

Date Written: November 20, 2019

Abstract

Professor Brian Fitzpatrick has recently written a provocative book, seeking to make the conservative case for class actions. In this essay, the author makes the liberal case against the modern class action. “Liberalism” is defined here as a process-based theory that requires constitutionally valid social policy choices to be made by those who are representative of and accountable to the electorate. It chooses this over the more popular substantive-based form of modern liberalism, because it finds adherence to the democratic process as a necessary condition for liberalism; the concept of “fascist liberalism” is oxymoronic. On the basis of this premise, the essay finds certain types of modern class actions to be fundamentally inconsistent with process-based liberalism. Where individual class member claims are so small that, as a practical matter, most claims will not be paid, and this is clear from the outset of the case, the class action undermines the foundations of controlling substantive law. It does so by ignoring the remedial element in the law being enforced: compensation to victims. And it does so not through transparent alteration in controlling substantive law, but rather through a kind of procedural process of alchemy that transforms a compensatory statute magically into a form of civil fine or qui tam action. A suit does not arise under Rule 23 of the Federal Rules of Civil Procedure. Rather, it arises under the underlying substantive law being enforced, and in these “faux” class actions, the procedural rule impermissibly transforms the substantive DNA of the law being enforced. In so doing it threatens to undermine the operation of representative democracy, which itself constitutes a foundational element of liberal political philosophy.

Keywords: Civil Procedure, Liberalism, Class Actions

JEL Classification: K10, K19, K40, K49

Suggested Citation

Redish, Martin H., The Liberal Case Against the Modern Class Action (November 20, 2019). Northwestern Public Law Research Paper No. 19-21. Available at SSRN: https://ssrn.com/abstract=3490677 or http://dx.doi.org/10.2139/ssrn.3490677

Martin H. Redish (Contact Author)

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

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