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.
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.
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.
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).
Stephen C. Yeazell, From Medieval Group Litigation to the Modern Class Action ( New Haven,
Conn.: Yale University Press, 1987).
42 U.S. (1 How.) LVI ( 1843).
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.
Comment, "The Class Action Device in Antisegregation Cases", 201 University of Chicago Law
Review577, 577 n. 1 ( 1953).
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).
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).
Minor technical changes to the rules were made in 1939 and 1948. Resnik, supra note 9, at 7 n.5.
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.
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.
Questia, a part of Gale, Cengage Learning. www.questia.com
Book title: Class Action Dilemmas:Pursuing Public Goals for Private Gain.
Contributors: Deborah R. Hensler - Author, Nicholas M. Pace - Author, Bonita Dombey-Moore - Author, Beth Giddens - Author, Jennifer Gross - Author, Erik K. Moller - Author.
Place of publication: Santa Monica, CA.
Publication year: 2000.
Page number: 37.
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