Title: From "Predominance" to "Resolvability": A New Approach to Regulating Class Actions
Abstract: This Article develops normative and doctrinal innovations to cope with a pivotal yet undertheorized question in most proposed class actions: assuming that a class has adequate representatives, how much variance among class members' circumstances should courts tolerate? Class actions seeking monetary damages would be much less controversial if the factual circumstances of every class member were exactly alike. In an imagined world of perfect homogeneity, shifting from an individualized to an aggregative mode of adjudication would promote efficiency, mitigate collective action problems, and counterbalance defendants' inherent economies-of-scale without sacrificing accuracy or redistributing entitlements among class members. In the real world, however, most classes encompass at least partially heterogeneous claims spread across a spectrum of merit and economic value. This diversity creates opportunities for strategic behavior that can distort the outcome of trials or of settlements negotiated in the shadow of trial. Article defines and explores three phenomena that create such distortions: cherry-picking, fusion, and ad-hoc lawmaking. potentially mischievous consequences of heterogeneity in class actions suggest that courts should have a normative theory and doctrinal mechanism to distinguish between acceptable and excessive diversity among proposed class members. Article addresses the normative question by introducing and justifying three principles to structure certification criteria: finality, fidelity, and feasibility. Article then applies these principles to assess the forty-year-old standard that currently governs how courts decide whether to certify diverse damages classes. This analysis reveals that the predominance standard is conceptually incoherent and that widely-cited doctrine applying it is normatively unsound. To fill the gatekeeping function that the predominance standard ineffectively attempts, the Article proposes a new resolvability test for courts to apply when deciding if a class action would be an appropriate procedural vehicle for adjudicating diverse claims and proposed test would permit certification of class actions seeking money damages only when: The court has a feasible plan to answer all disputed questions of law and fact that must be resolved before entering judgment for or against class members under the law governing each class member's claim and applicable defenses. Article then discusses broader implications of its proposal that highlight a dynamic relationship between substantive and procedural constraints on regulation of mass risks. I. INTRODUCTION Class actions incite both delight and disgust. Several complementary themes in popular culture embrace the class action, including sympathy for underdog litigants challenging powerful malefactors, fascination with massive redistributions of wealth from corporations to individuals, and reluctance to permit large and influential wrongdoers to escape justice merely because of their size and clout. Class actions have thus become an appealing procedural counterweight to the burdens that modern society imposes on consumers and citizens, giving many little Davids a fighting chance for protection from or retribution against political and economic Goliaths. But class actions also expose and rile competing visions of the judicial system: suspicion of large-scale judicial proceedings, wariness of high-paid plaintiffs' lawyers, and a sense that society may subsidize the jackpot payouts that often result from group litigation and settlement. These crosscurrents of attraction and repulsion have propelled class actions to a level of political and academic prominence far exceeding the attention devoted to any other aspect of civil procedure. Despite the critical attention focused on class actions, the debate over how best to reform them has not identified a conceptual flaw at the core of their design. …
Publication Year: 2005
Publication Date: 2005-05-01
Language: en
Type: article
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Cited By Count: 1
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