Class Action Dilemmas: Pursuing Public Goals for Private Gain

It will take a generation or so before we can fully appreciate the scope, the virtues and the vices of new Rule 23.

Professor Benjamin Kaplan. Reporter, Advisory Committee on the Civil Rules, 1966

After more than 30 years of controversy, the U.S. legal system seems to have reached an uneasy accommodation with class actions seeking affirmation of rights -- of children, taxpayers, prisoners, and other groups in society. There is political disagreement about which and whose rights we should honor, and Congress has enacted legislation forbidding the federally funded Legal Services Corporation to assist in bringing rights-based (or any other) class actions. ¹ But these actions reflect fundamental arguments about individual and group rights more than disagreement about the appropriateness of providing a vehicle, such as the class action, for collective litigation of these issues.

The history of the debate over Rule 23 shows that we have not reached a similar consensus on the appropriate uses of Rule 23 (b) (3) damage class actions. Is the Rule 23 (b) (3) class action primarily an administrative efficiency mechanism, a means for courts and parties to manage a large number of similar legal claims, without requiring each litigant to come forward and have his or her claim considered individually? Or is it primarily a means of enabling litigation that could not be brought on an individual basis, in pursuit of larger social goals such as enforcing government regulations and deterring unsafe or unfair business practices? As we have seen, clashing views on the objective of Rule 23 (b) (3) are at the heart of past and present controversy over revising the class action rule. ²

But the distinction in the public debate between the efficiency and enabling goals of class actions for money damages is illusory. In practice, any change in court processes that provides more efficient means of litigating is likely to enable more litigation. Greater efficiency can lower the costs of bringing lawsuits, making it more attractive for litigants to sue and for lawyers to take their cases. Moreover, because Rule 23 (b) (3) requires telling people that they may have a claim of which they were previously unaware, but does not require them to take

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