Class Action Lawmaking: An Administrative Law Model

Posted: 14 Jun 2006 Last revised: 21 Sep 2010

See all articles by Mark Moller

Mark Moller

DePaul University - College of Law


In this Article, I suggest that class action law can take some pointers on statutory interpretation from administrative law.

Trial courts often must decide whether they can "adapt" elements of statutory claims to "fit" the requirements for class litigation. (A judge might do so, for example, by adopting a statutory presumption of causation, in spite of evidence that the statute envisions individualized, case-by-case causation inquiries.)

Courts that "modify" statutes in this way often assume the statute they are applying "travels with" an implicit instruction that courts should adapt it, where necessary, to remedy wide-scale injuries. In effect, these courts assume substantive statutes presumptively delegate them special "dynamic interpretive" power in the class context.

No one has compared these assumptions to those that apply to interpretation by agencies. The comparison is revealing: If courts conformed to the interpretive norms of administrative law, they would not be so quick to assume Congress has "delegated" them special power to "adapt" statutes in the class context. Norms of interpretation in the class context, in other words, allow courts to take interpretive liberties that aren't permitted to agencies.

As a presumptive matter, this is backwards: Given their lack of a democratic pedigree, courts should be as restrained as agencies, if not more so. This Article therefore counsels a modest move in the direction of judicial restraint: Until Congress provides further guidance, courts should, at a minimum, consciously parallel the restraint they demand of agencies when deciding how much "license" they can take with a statute in the class context. This move, in turn, would reduce the number of class actions certified, while inviting more democratic oversight of class action litigation.

Keywords: Chevron, Administrative Law, Statutory Interpretation, Class Actions

JEL Classification: K00, K20, K40, K41

Suggested Citation

Moller, Mark, Class Action Lawmaking: An Administrative Law Model. Texas Review of Law & Politics, Vol. 11, No. 39, 2007, Available at SSRN:

Mark Moller (Contact Author)

DePaul University - College of Law ( email )

25 E. Jackson Blvd.
Chicago, IL Cook County 60604
United States

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