Aggregate Litigation and the Death of Democratic Dispute Resolution
Mullenix, Linda S., Northwestern University Law Review
ABSTRACT-Professor Redish has anchored the modern class action in American political and constitutional theory, raising serious questions about the legitimacy of this procedural device for resolving aggregate claims. Professor Redish's major insight is his argument that the courts and litigants have transformed the modern class action from a mere procedural device into a means for controlling and altering substantive law in ways that he considers to be highly undemocratic.
Others, however, have suggested that the class action is dead. The Article surveys accounts of the death of class actions and explains the continued endurance of class litigation, which, it turns out, is hard to kill off. The Article then documents the changing landscape of aggregate dispute resolution, documenting a significant paradigm shiftin the twenty-first century towards increased use of private claims resolution mechanisms. The Article focuses on settlement classes, multidistrict litigation procedure, contractual nonclass settlements, the quasi-class action, and fund approaches to mass claim resolution.
Finally, the Article critically evaluates this paradigm shiftand concludes that Redish's critique of class action litigation has even greater relevance in the new world of nonclass, aggregate claims resolution: that Professor Redish's critique applies with even greater force in the nonclass universe. With the paradigm shifttowards nonclass aggregate claims resolution, the arc of history may be bending towards greater injustice-a shiftthat is more significant because it is largely unbounded by rules and unmoored from judicial oversight.
Class actions are dead.
-Kenneth R. Feinberg[dagger]
No one has written as passionately and well about the democratic theory of class action litigation than Professor Martin H. Redish.1 Indeed, no one else has written about it at all.2 Through a series of landmark articles,3 Professor Redish has anchored the modern class action in American political and constitutional theory and, at the same time, raised serious questions about the legitimacy of this procedural device.
Professor Redish's major insight into class action litigation is his argument that the courts and litigants have transformed the modern class action from a mere procedural device into a means for controlling and altering substantive law in ways that he considers to be highly undemocratic.4 In particular, Redish has identified and challenged the driftof the modern class action into what he has labeled the "bounty hunter" remedial model,5 characterizing such litigation as "faux" class actions.6
In addition to taking aim at the problem of faux class actions, Redish rightly has focused much of his critique on the modern settlement class action, a mechanism greatly expanded in the late 1990s that generated enormous controversy in the courts and academic arena.7 Redish has argued that settlement classes, "where all sides are in total agreement from the very initiation of the proceeding," raise serious questions about the constitutionality of the entire process.8
Specifically, Professor Redish contends that settlement classes violate the Article III requirement that federal courts adjudicate only "real cases and controversies," and that ginned-up disputes that are resolved through settlement classes violate Article III of the Constitution.9 In addition, Redish has persuasively argued that settlement classes are the poster child for procedural mechanisms that transgress the Rules Enabling Act,10 and therefore that settlement classes under Rule 23 are an unconstitutional exercise of judicial authority.11
As a consequence of his critique of the class action mechanism, Professor Redish suggests that "major constitutionally dictated changes" to Rule 23 and prevailing judicial applications of Rule 23 doctrine are necessary.12 In this view, federal courts should hold that settlement classes contravene the Article III case or controversy requirement because current doctrine sanctions the judicial resolution of faux disputes, without any real case or controversy. …