Martin Redish is back in the news. In the past week, he’s been written up in Forbes and the ABA Journal, as well as a series of associated blog posts by academics like Elizabeth Chamblee Burch. The Forbes profile – which kicked off the coverage – quotes him as saying that the rights held by class action litigants:
are individually held rights … What a lot of class action scholars and proponents have done–quite cleverly, I must say–is engage in a sort of alchemy to transform individual rights into collective rights.
The Forbes profile doesn’t focus on any particular work of Redish’s, although the discussion of cy pres relief recalls his forthcoming article on “Cy Pres Pathologies,” and Chamblee Burch uses it to highlight his latest book: Wholesale Justice: Constitutional Democracy and the Problem of the Class Action Lawsuit. But the Forbes headline (“Are Class Actions Unconstitutional?”), which has generated much of the buzz, presumably refers to Redish’s argument that the Rules Enabling Act (which gives authority to the Federal Rules of Civil Procedure) is unconstitutional because it violates Article III’s “case and controversy” requirement and the nondelegation doctrine. (For those playing along at home, Redish makes this argument at pp. 73-85.)
Redish predicts that his proposals will fall on “deaf ears.” He’s likely right – not because those proposals are unsound (or even invalid), but because very few lawyers would argue that the Rules Enabling Act (and with it, the entire structure of the federal rules) is unconstitutional. The typical class-action defendant – which is usually a corporation familiar with the benefits and drawbacks of litigation – is unlikely to want to bring the entire temple down on top of itself, no matter how much it might dislike the effects of Rule 23. And a settlement objector – most often a moonlighting plaintiff’s attorney – is even less likely to want to undermine the entire class-action structure. Nor is Congress likely to un-delegate responsibility for the Rules of Civil Procedure anytime soon.
Does this mean Redish’s work is useless? Hardly. There’s always value in going back and kicking the tires on people’s assumptions; no one wants a constitutional blowout at high speeds. But even more importantly, Redish at his best is gimlet-eyed about the disconnects between the legal fictions that accompany the class action and the realities of how class awards and class settlements get administered. While Redish’s approach to these disconnects is largely theoretical, it provides an excellent starting point for some more grounded legal attacks on meritless class actions.