What the Shutts Opt-Out Right is and What it Ought to Be
37 Pages Posted: 21 Apr 2012 Last revised: 29 May 2012
Date Written: 2006
This article discusses the ramifications of the U.S. Supreme Court's decision in Phillips Petrolem v. Shutts, 472 U.S. 797 (1985), regarding the right of an absent class member to opt out of a class action. The article addresses both the current prevailing understanding of Shutts, which is based on the personal jurisdiction strain of due process jurisprudence, and what the authors believe is a more useful understanding, based on the property rights strain of due process jurisprudence. As an addendum to the article, the authors propose a new civil procedure rule governing class actions that would implement their ideas about opt-out rights and class action governance more generally.
Keywords: class actions, opt out, civil procedure, Shutts
JEL Classification: K40, K41
Suggested Citation: Suggested Citation