Class Action Dilemmas: Pursuing Public Goals for Private Gain

By Deborah R. Hensler; Nicholas M. Pace et al. | Go to book overview

they might have a legal claim and most of whom play little or no role in the litigation process. These financial incentives produce significant opportunities for lawyers to make mischief, to misuse public and private resources for litigation that does not serve a useful social purpose. How to respond to this dilemma is the central question for public policy.

The controversy about how to respond to the dilemma posed by damage class actions implicates deep beliefs about the structure of the political system, the nature of society, and the roles of courts and law in society. In democracies such as ours, such controversies often are difficult to resolve and may roil for decades. But at present, many of those on opposite sides of the political controversy over damage class actions share concerns about how class actions are litigated. These shared concerns present opportunities for reform. In the final chapter, we analyze popular proposals for damage class action reform, drawing upon what we learned in our study. Our goal is to identify the approaches that show the most promise for improving the balance between the public and private gains in class action practice -- and that offer the best opportunities for finding common ground amidst the controversy.


NOTES
1
Class actions may also be used by a group of defendants who choose to be represented in a litigation by a single individual or entity. This book focuses on class actions brought on behalf of multiple plaintiffs, because these lawsuits are more numerous and more controversial. On the infrequent use of defendant classes, see Herbert Newberg and Alba Conte, Newberg On Class Actions 4-181 ( Colorado Springs, Colo.: Shepard's/ McGraw-Hill, 3rd ed. 1992).
2
Ed Gillespie and Bob Schellhas, Contract with America: The Bold Plan by Rep. Newt Gingrich, Rep. Dick Armey and the House Republicans to Change the Nation ( New York: Random House, 1994), at 150. These charges are part of a larger controversy about the impact of civil litigation on the U.S. economy. Analysts have different opinions about the factual basis for such assertions. Peter Huber, Liability: The Legal Revolution and Its Consequences ( New York: Basic Books, 1988); Peter Huber and Robert Litan, eds., The Impact of Liability Law on Safety and Innovation ( Washington, D.C.: The Brookings Institution, 1991); Peter Schuck, ed., Tort Law and the Public Interest: Competition, Innovation, and Consumer Welfare ( New York: W.W. Norton, 1991).
3
Rule 23 is one of a set of rules that specify the procedures to be used by litigants and judges in civil litigation in federal courts, which are formally termed the Federal Rules of Civil Procedure. State courts adopt their own rules for governing civil litigation, many of which are identical or similar to the federal rules. Most states have adopted rules for class actions that are modeled after the federal rule. Thomas Dickerson, Class Actions: The Law of 50 States ( New York: Law Journal SeminarsPress, 1997) (hereinafter Dickerson, State Class Actions).

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