Class Action Dilemmas: Pursuing Public Goals for Private Gain

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

templating the appropriateness of class treatment for mass torts should do so in the belief that truly individual litigation is the alternative.

Whether there are legal rules and practices that could better harness the incentives created by collective litigation, to assure that its public goals are not outweighed by the private gains, is the key question for public policy. In the final chapter, we will return to this question.


NOTES
1.
Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134 § 504(a)(7), 110 Stat. 1321 ( 1996) ("None of the funds appropriated in this Act to the Legal Services Corporation may be used to provide financial assistance to any person or entity . . . that initiates or participates in a class action suit"), and Omnibus Consolidated Appropriations Act of Fiscal Year 1997, Pub. L. No. 104-208, § 502 (b), 110 Stat. 3009 ( 1996), forbid Legal Services Corporation grantees to participate as counsel in a class action or to engage in any litigation concerning welfare, abortion or redistricting, or on behalf of aliens (with some exceptions) or prisoners. Commenting on the appropriation for the Legal Services Corporation on September 29, 1995, Senator Peter Domenici (R) emphasized: "No class action lawsuits -- no class action lawsuits -- can be filed . . . [The ap- propriation provides for] [i]ndividual legal services for individual Americans in need, for their case and their cause and only that." And Senator Ernest Hollings (D) commented: "There are plenty of moneys [sic] for class actions for these other groups [from other sources). You have to keep [LSCI couched and carefully controlled . . . So I welcome the restrictions that have been put on by Senator Gramm and others here with respect to class action and illegals and otherwise. Let us make sure that we maintain the integrity of the program." 141 Cong. Rec. S14,607 ( Sept. 29, 1995).
2.
Administrative Office of the U. S. Courts, 1 Working Papers of the Advisory Committee on Civil Rules on Proposed Amendments to Rule 23 xii ( 1997) (hereinafter Working Papers of the Advisory Committee).
3.
Social scientists have found that requiring individuals to consent to a procedure -- for example, participation in a research project -- is markedly higher when consent is measured passively, by failure to file an objection, rather than actively, by explicitly registering agreement to participate. See, e.g., Phyllis Ellickson, "Getting and Keeping Schools and Kids for Evaluation Studies", Special Issue, Journal of Community Psychology 102 ( 1994).
4.
See, e.g., Bob Van Voris, "Plaintiff Bar Divided By Settlements: Tiny Payouts, Big Fees Hit By Public Interest Lawyers", National Law Journal, Feb. 23, 1998, at Al, A22.
5.
157 F.R.D. 246 (E.D. Pa. 1994).
6.
162 F.R.D. 505 (E.D. Tex. 1995).
7.
In re General Motors Pick-Up Truck Fuel Tank Litigation, 55 F.3d 768 (3d Cir. 1995).
8.
In re Ford Motor Company Bronco II Products Liability Litigation, 177 F.R.D. 360 (E.D. La. 1997).
9.
3 Working Papers of the Advisory Committee, supra note 2, public hearing, Dec. 16, 1996, at 25.
10.
The legal term of art for this is that civil procedure rules are "trans-substantive."
11.
Thomas Willging, Laural Hooper, and Robert Niemic, Empirical Study of Class Actions in Four Federal District Courts. Final Report to the Advisory Committee on Civil Rules ( Washington, D.C.: Federal Judicial Center, 1996).
12.
We also compiled data from the Bureau of National Affairs (BNA) litigation reporters, which we presented in a briefing on the preliminary results of the study. See Deborah Hensler et al., Preliminary Results of the RAND Study of Class Action Litigation ( Santa Monica, Calif.: RAND, 1997). Because those data reflect trends in some litigation areas but not others, we have not included them in the analysis here.
13.
See supra Chapter Two at p. 12.
14.
Willging et al., supra note 11. In Appendix B we compare the results of our database search with the Federal Judicial Center data.

-123-

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