Class Action Dilemmas: Pursuing Public Goals for Private Gain

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

the Advisory Committee less than a year before. 140 And, in the waning days of the 109th Congress, proposals for reforming class action procedures were said to be high on the Republican Speaker of the House's list of priorities. As the decade drew to close, the battle over the uses of damage class actions continued.


NOTES
1
In the Anglo-American common law tradition, the adversaries themselves are responsible for developing the facts and the law; the judge serves as umpire; and the judge or jury decides the case, unless the parties are able to negotiate a compromise among themselves. In other legal systems, the judge plays a more prominent role in shaping the case.
2
This point was forcefully made by Judge Jack B. Weinstein more than 25 years ago, and a decade before he presided over the Agent Orange class action brought by Vietnam veterans. See Jack B. Weinstein , "The Class Action Is Not Abusive", New York Law Journal, May 1-2, 1972, 2, 4.
3
This depiction of the origins of class actions is usually traced to Zechariah Chafee, Some Problems of Equity ( Ann Arbor, Mich.: University of Michigan Press, 1950).
4
Stephen C. Yeazell, From Medieval Group Litigation to the Modern Class Action ( New Haven, Conn.: Yale University Press, 1987).
5
42 U.S. (1 How.) LVI ( 1843).
6
In Smith v. Swormstedt, 57 U.S. (16 How.) 288 ( 1853), a group of Southern preachers pressed suit against an organization of Methodist preachers to recover their pension funds. Northern preachers had refused to administer pensions for Southern preachers after the country became divided over the use of slavery in the South. The court held that the group of Southern preachers could sue on behalf of all Southern preachers, present and absent.
7
226 U.S. 659 ( 1912).
8
Comment, "The Class Action Device in Antisegregation Cases", 201 University of Chicago Law Review577, 577 n. 1 ( 1953).
9
The Chief Justice proceeded under the authority of the Rules Enabling Act of 1934, which authorized the federal courts to adopt uniform rules of procedure. See Judith Resnik, "From 'Cases' To 'Litigation,'" 54 Law and Contemporary Problems5, 7 ( 1991).
10
Curiously, the import of the three categories was not spelled out in the rule, but rather was set forth in the leading text of the day, Moore's Federal Practice. The courts tended to follow Professor Moore's interpretation of the categories. See "Developments in the Law: Multi-Party Litigation in the Federal Courts", 71 Harvard Law Review874, 930 ( 1958).
11
Minor technical changes to the rules were made in 1939 and 1948. Resnik, supra note 9, at 7 n.5.
12
Id. at 8-9.
13
John P. Frank, "Response to 1996 Circulation of Proposed Rule 23 on Class Actions: Memorandum to My Friends on the Civil Rules Committee", ( Dec. 20, 1996), in Administrative Office of the U.S. Courts, 2 Working Papers of the Advisory Committee on Civil Rules on Proposed Amendments to Rule 23 266 ( 1997) (hereinafter Working Papers of the Advisory Committee). Another member of the 1966 Committee, William T. Coleman, rejects the implication that the 1966 Committee intended to facilitate "private attorneys general" class actions for the purposes of regulatory enforcement: "I respectfully submit that back in 1966, that was not an intended purpose of Rule 23 (b) (3). If there is interest in deputizing all attorneys everywhere to enforce our laws, that's a matter that should be decided by Congress, not through the class action provisions in the Federal Rules of Civil Procedure." 4 Working Papers of the Advisory Committee, at 456. The use of private class actions for regulatory enforcement is discussed further in Chapter Three.
14
Arthur Miller, "Of Frankenstein Monsters and Shining Knights: Myth, Reality, and the 'Class Action Problem,'" 92 Harvard Law Review664, 669 ( 1979). In legal practice, committee and task force "reporters" are not only responsible for recording a group's deliberations and polishing its output, but also may play a critical role in shaping its thinking and guiding its deliberative process.

-37-

Notes for this page

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this book

This book has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this book

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this page

Cited page

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited page

Bookmark this page
Class Action Dilemmas: Pursuing Public Goals for Private Gain
Table of contents

Table of contents

Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this book

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen
/ 609

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.