Opting Out of Liability: The Forthcoming, Near-Total Demise of the Modern Class Action
This article is a must read for those concerned about mandatory arbitration agreements. Here's the introduction and a link.
Myriam Gilles, Opting Out of Liability: The Forthcoming, Near-Total Demise of the Modern Class Action
In recent years, there have been hundreds of academic articles and scores of books written about class action litigation. The law reviews abound with doctrinal critiques, letters to Congress, moralist manifestos, and economists’ prescriptions for optimized class action rules. Reading it all, one would certainly think that abusive class action litigation is running amok in the United States. On the doctrinal front, for example, Professor Martin Redish raises the objection that much of contemporary class action litigation is, in reality, a “lawyer-driven” hunt for bounty and that, when a court in such a case applies Rule 23 procedures to a substantive federal statute, it is effectively grafting a qui tam provision onto a law that contains no such remedy. Redish would have courts hold that Rule 23 may not be applied to lawyer driven suits, lest it conflict with the remedial scheme of the substantive congressional enactment upon which the suit is based. Alternatively, he would settle for legislation banning the widespread scourge of lawyerdriven class actions.
It is, I think, overly dramatic to say that all of this scholarship misses the point. And yet, almost universally, the staggering heap of academic reform proposals ignores a fundamental and transformative point: in the ongoing
and ever-mutating battle between plaintiffs’ lawyers and the protectors of corporate interests, the corporate guys are winning. And they are winning because they have developed a new set of tools powerful enough to imperil
the very viability of class actions in many—actually, most—areas of the law. In fact, I believe it is likely that, with a handful of exceptions, class actions will soon be virtually extinct. (read full article)