The Politics of Class Action Reform: Reflections on the American Experience

Abstract

This article focuses on class action reform in the United States and centers on three relatively recent examples of attempts to influence class action amendment: the Congressional Class Action Fairness Act of 2005, the American Law Institute’s Principles of the Law of Aggregate Litigation (2010), and the Congressional Fairness in Class Action Litigation Act of 2017. These examples provide interesting counterpoints of efforts by the plaintiff and defense bars – and their allies – to reform class action procedure to benefit their clients. The example provided by The Principles of the Law of Aggregate Litigation explores the machinations of plaintiff interests to revamp class action procedure favorably through the auspices of the American Law Institute. The Congressional legislative initiatives illustrate the direct lobbying of defense interests to accomplish sweeping reform of American class action practice through federal legislation.

Although class action reform efforts may be judged by its final procedural consequences, discussion of such results often fail to account for the efficacy of the underlying political efforts to favorably influence reform initiatives. Consequently, commentators frequently fall short in assessing the degree to which political actors succeeded or failed in their efforts to shape the law for their own benefit. Procedural reform is not conducted in a political vacuum, but rather in a cauldron of political self-seeking. As this article concludes, the case studies of recent American law reform efforts suggest that institutional procedural reform efforts – at least in the United States -- work admirably to deflect the more extreme efforts of political actors who seek to revamp law to their own advantage. As will be seen, the plaintiffs failed in their attempts to remake class action procedure through the auspices of the American Law Institute, and defense interests failed in their attempt to eviscerate class action procedure by legislative enactments by the United States Congress.

Keywords: Class Action, Class Action Litigation, Rule 23, Class Action Reform, Class Action Lobbying, Class Action Fairness Act of 2005, Fairness in Class Litiation Act of 2017, Principles of the Law of Aggregate Litigation, Mdl Litigation, Complex Litigation