Superiority as Unity
Tidmarsh, Jay, Northwestern University Law Review
ABSTRACT-One of Professor Redish's many important contributions to legal scholarship is his recent work on class actions. Grounding his argument in the theory of democratic accountability that has been at the centerpiece of all his work, Professor Redish suggests that, in nearly all instances, class actions violate the individual autonomy of litigants and should not be used by courts. This Essay begins from the opposite premise: that class actions should be grounded in the notion of social utility rather than autonomy so that class actions should be used whenever they achieve net social gains. This idea of "superiority" presents some difficulties, not the least of which is the capacity of a court to determine whether a class action is indeed superior to other forms of dispute resolution. The Essay proposes a series of presumptions that give effect to superiority and make an inquiry into superiority easier for courts to conduct. When the results obtained by these presumptions are examined, they do not result in the near-absolute position against class actions that Professor Redish favors, but surprising convergences in the autonomy and utility approaches emerge.
Marty Redish's book, Wholesale Justice,1 is the Cassandra of class action literature. Its prophetic call for a significant scaling back of Federal Rule of Civil Procedure 23 and comparable state court counterparts2 has not (or at least not yet) caught on among the commentators on class actions. Even though the Supreme Court has also signaled in recent years its discomfort with adventuresome uses of litigation, settlement, or arbitral class actions,3 it has so far failed to heed Professor Redish's arguments about why class actions should be narrowly constrained.4
In this Essay, I engage Professor Redish's arguments in detail. I have great sympathy with the core of Professor Redish's concern: that class actions in many circumstances undermine democratic accountability because they undercut the autonomy of individual litigants. I also admire the Redishian sophistication in the book's central move, which argues that litigant autonomy is protected under the Due Process Clause.5 This move allows Professor Redish to assert that the government can impinge on this autonomy only when a compelling interest exists and that, except in a narrow range of cases, American class action rules fail to meet this stringent standard.6
The difficulty with the argument, as Professor Redish acknowledges with his characteristic honesty,7 is that the Due Process Clause has not been construed to protect litigant autonomy against government interference in such a strong form. Indeed, the dominant approach to due process analysis allows a court to trade offlosses in litigant control against social gains (in particular, reductions in the expense of litigation) achieved from less adversarial processes.8 Using such a metric, it might seem obvious that class actions both are constitutional and should be widely available, at least as long as the efficiencies realized by class treatment exceed the intangible loss of autonomy.
In fact, that conclusion is far from obvious. Indeed, this Essay analyzes the question of the proper scope of class actions by starting at precisely the opposite point from Professor Redish-from the point of social welfare rather than individual autonomy. Put differently, this Essay treats seriously the idea that class actions should be used only when they advance social welfare. Adopting this "superiority principle" leads the law of class actions, I will argue, to an endpoint not so very distant from the point at which Professor Redish arrives.
The Essay proceeds in two parts. First, the Essay analyzes Wholesale Justice's argument about the proper scope of class actions, as well as the difficulties that this argument encounters under the present case law. Second, the Essay examines the proper reach of class actions if the superiority of class actions on a social-welfare basis were the touchstone. …