That’s the question posed by a student note coming out from the Hastings College of Law in July. And the answer, according to author Joshus Stadler, is “No.”

Stadler’s primary argument is that the class action has its roots in equity, and was conferred its current status by the Rules Enabling Act, which does not enlarge or constrict any substantive rights. Since the Seventh Amendment only allows for jury trials for causes of action that existed in common law at the time of its adoption (generally, 1791), and the class action was given its modern status as a procedural device under the Rules Enabling Act, Stadler argues that there is no Seventh Amendment guarantee for a jury trial in a class action.

Stadler’s argument has to overcome a few obstacles. (Most notably, the Seventh Amendment applies to “Suits at common law,” which implies substantive causes of action instead of procedural devices. One can file a class action asserting a common-law cause of action like breach of contract, but there is not – nor has there ever been – a suit for “class action” as a cause of action.) But if it is correct, it would have significant strategic ramifications for class-action defense lawyers. In many cases, class-action defendants have expressed valid concerns about placing a lawsuit with bet-the-company stakes into the hands of a single, twelve-person jury. In others, however, defendants have successfully defeated class certification by pointing out either the Seventh Amendment concerns implicated by a plaintiff’s proposed trial plan, or the difficulties that would arise from instructing a jury in the laws of the various states implicated by proposed class action

Stadler’s argument is worth a read for another reason. It’s the second time in the last year that someone has attacked the legitimacy of the class action device by looking at its roots in the Rules Enabling Act. (The first was Martin Redish’s discussion of whether the class action is constitutional in general.) Stadler may have been influenced by Redish (though his one cite to the professor is not to his class-action work). Regardless, it’s worth noting this trendlet in the legal academy: there may be an emerging generation of students who wind up questioning the legitimacy of the class action on constitutional rather than policy grounds.