Class Actions: Aggregation, Amplification, and Distortion

Abstract

Class actions are best justified as an aggregation device that allows for lawyers to bring large numbers of claims in a single proceeding, where each party is compensated for his or her loss of control by a receipt of the greater returns that class actions promise. One constraint on aggregation is that it preserve the substantive entitlements between plaintiffs and defendants. Yet all too often it turns out that courts will relax the substantive requirements of proof in favor of plaintiffs in order to increase the number of common issues needed to justify the certification of a class. The net effect is that class actions work to distort the substantive laws in ways that tend to have a systematic bias in favor of plaintiffs that was no part of their original purpose or design. Guarding against this risk should lead judges to exercise greater caution in the certification of classes.