Class Action Dilemmas: Pursuing Public Goals for Private Gain

By Deborah R. Hensler; Nicholas M. Pace et al. | Go to book overview
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provide data for assessing how well different class actions serve their stated purposes.

* * *

Notwithstanding the controversy they arouse, history suggests that damage class actions will remain a feature of the American civil litigation landscape. Whether and when to permit specific types of damage class actions will be decided by Congress and the fifty state legislatures. But it is judges -- by their willingness or unwillingness to certify cases, to approve settlements, and to award fees -- who will decide the kinds of cases that will be brought within whatever substantive legal framework emerges. Educating judges to take responsibility for class action outcomes and providing them with more detailed guidance as to how to evaluate settlements and assess attorney fee requests, ensuring that courts have the resources to manage the process and scrutinize outcomes, and opening up the class action process to public scrutiny will not resolve the political disagreement that lies at the heart of the class action controversy. But these actions could go a long way toward ensuring that the public goals of damage class actions are not overwhelmed by the private interests of lawyers.

Arthur Miller, "Of Frankenstein Monsters and Shining Knights: Myth, Reality and the Class Action Problem", 92 Harvard Law Review 664 ( 1979) at 667-68.
See supra Chapter Two at 31-33. The Advisory Committee also considered, but did not propose for formal review, a new provision of Rule 23 (b) (3) that would have required a preliminary hearing on the merits prior to certification. Id., at 29 and fns. 102 and 103. That provision encountered opposition from both plaintiff and defense bars. The thrust of our analysis of the "just ain't worth it" provision applies to this and other proposals for incorporating substantive review into the class certification criteria.
Eisen v. Carlisle & Jacquelin, 417 U.S. 156 ( 1974).
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 171 table 24 ( Washington, D.C.: Federal Judicial Center, 1996).
Id. at 171 table 22.
Id. at 171 tables 23-24.
See supra Chapter Two, at 14 and fn. 18.
See, e.g., Phyllis Ellickson, "Getting and Keeping Schools and Kids for Evaluation Studies", Special Issue, Journal of Community Psychology 102 ( 1994).
Some critics of the proposal to return to an opt-in regime also argue that in Rule 23(b)(3) employment class actions, an opt-in requirement might scare off class members who fear reprisals from a defendant.
In a speech to the National Press Club in Washington, D.C. on May 20, 1998, the then-chair of the Civil Rules Advisory Committee, Judge Paul V. Niemeyer, observed: "The inertia of not responding [to notice] has been identified as the cohesive force behind the viability of plaintiff class actions. [Requiring individuals to opt in] is . . . the change to the rule that could be made to eliminate most of the class actions or radically reduce their size."


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Class Action Dilemmas: Pursuing Public Goals for Private Gain
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