Class Action Dilemmas: Pursuing Public Goals for Private Gain

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

Chapter Sixteen
ACHIEVING THE OBJECTIVES OF RULE 23(b)(3)
CLASS ACTIONS

Admittedly, the dimensions of certain class actions are beyond anything previously seen in Anglo-American courts in terms of size, complexity, and longevity. Some of these cases obligate federal judges to undertake supervisory tasks requiring enormous expenditures of time and effort, converting their role from one of passive adjudicator of a dispute staged by opposing counsel to that of active systems manager. Yet, imaginative judicial management by district judges willing to control, shape and expedite these can go far toward achieving the objectives of the class action.

Professor Arthur Miller, writing of class actions in 19791

At the heart of the long controversy over damage class actions is this dilemma: The litigation derives its capacity to do good from the same feature that yields its capacity to do mischief. That feature, of course, is the opportunity damage class actions offer lawyers to secure large fees by identifying, litigating, and resolving claims on behalf of large numbers of individuals, many of whom were not previously aware that they might have a legal claim and most of whom play little or no role in the litigation process. The central question for public policy- making is how to respond to this dilemma.

To those who believe that the social costs of damage class actions outweigh their social benefits, it seems as if the best possible response is to abandon entirely the notion of using private collective litigation to obtain monetary damages. We should rely, say these critics, on administrative agencies and public attorneys general, not private litigation, to enforce regulations. We should rely on individual litigation to secure financial compensation for individuals' financial losses, accepting that some losses that were wrongfully imposed by others will go uncompensated because they are simply too small to be worth the cost of individual litigation.

But those who believe that the social benefits of damage class actions outweigh their costs say that this response is unacceptable. They have less faith in the

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