The Class Action Rule

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