The Class Action Rule

36 Pages Posted: 11 Apr 2006

See all articles by John Bronsteen

John Bronsteen

Loyola University Chicago School of Law

Owen M. Fiss

Yale University - Law School

Abstract

The class action is a compromise: It removes class members' right to participate in their own lawsuits, but it benefits society by holding defendants accountable for the dispersed harm they create. This compromise is captured by the idea that the named plaintiff's role is to represent the interests of the absent class members rather than to be their agent. Because the architecture of Rule 23 - the federal procedural rule that governs class actions - is inconsistent with the nature of the class action as a compromise based on interest representation, the rule should be altered dramatically. We would eliminate the core categorization scheme of 23(b) and apply limited notice, intervention, and opt-out rights to all class actions.

Keywords: class action, Rule 23, interest representation, notice, intervention, opt-out

Suggested Citation

Bronsteen, John and Fiss, Owen M., The Class Action Rule. Notre Dame Law Review, Vol. 78, No. 5, pp. 1419-1454, 2003, Available at SSRN: https://ssrn.com/abstract=895093

John Bronsteen (Contact Author)

Loyola University Chicago School of Law ( email )

Chicago, IL 60611
United States
312-654-1511 (Phone)
312-915-7201 (Fax)

HOME PAGE: http://www.luc.edu/law/fulltime/bronsteen.shtml

Owen M. Fiss

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

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