Last month, I received a flurry of email from various people who wanted to point me towards Mark Herrrman’s column on Above the Law, "Torpedoing Class Actions." In that column, Herrmann reviewed Martin Redish’s 2009 book Wholesale Justice, which argues that class actions are an unconstitutional delegation of state power to private lawyers. He also called class-action defense lawyers "derelict" and asked "Where is the practicing bar?" when it comes to advocating Redish’s arguments.

Where is the defense bar on these arguments? We’ve been here. I first took notice of Professor Redish’s book soon after I started this blog.  And I looked at it again when Professor Lahav reviewed the book in 2011.  I’ve also repeatedly repented the fact that I sold his work short in my initial review.
But when I first wrote about Professor Redish’s work, I wasn’t yet writing full-length book reviews. So I resolved that I would take a look at Wholesale Justice again, and try to give it a fuller treatment. (Be warned, this post is a long one. Be also warned, this post will get theoretical. You will encounter terms like "communitarian," "Presentment Clause," and "chose in action.")
Here goes:
Professor Redish has two main critiques of the American class action:

(1) class actions wind up transforming plaintiffs’ lawyers into unelected, unaccountable policymakers; and 
(2) class actions undermine the Article III "case or controversy" requirement.  

He builds his argument chapter by chapter.  

First, in Chapter 2 (Chapter 1 is his introduction), he argues that, as a matter of political theory, policymaking in a democracy requires accountability to citizens.  (Legislators and executive politicians have this accountability through election.  Judges arguable are not policymakers under this theory, they simply interpret policy set by others.)  In class actions however, the real parties in interest are not the litigants, but the plaintiffs’ lawyers, who choose the subject matter of suits and the causes of action they will asset.  As a result, they’re accountable to no one.  Professor Redish points out that these lawyer-driven policy actions would be legitimate if Congress specifically authorized them (as it does with private attorney-general actions, parens patriae actions, and qui tam actions), but it has not done so for Rule 23 generally.  And, if it were to do so with Rule 23, it would be embedding a substantive change into a procedural rule, which would violate the Rules Enabling Act.  (Congress could conceivably get around this by simply enacting a series of "bounty-hunter" provisions in each of its statutes. But what are the chances those would all get passed?)

In Chapter 3, Professor Redish takes on the Rules of Civil Procedure more directly.  He argues that the Rules have a large substantive effect on lawsuits in the United States.  That effect suggests that the Rules are, at least in part, substantive rather than procedural.  These substantive effects lead to a politicization of class actions.  In other words, both plaintiffs’ attorneys and defendants wind up lobbying to reduce or expand the use of class actions, either by statute (say, CAFA, which gets surprisingly little mention), by more direct lobbying (like pay-to-play practices), or conceivably by lobbying judges.  The problem, Professor Redish argues, is that the Rules Enabling Act wasn’t supposed to delegate substantive lawmaking to the courts.  To the extent it does so, it may violate the non-delegation doctrine.  (This is where Herrmann’s quip about the Presentment Clause comes in.  If courts are making substantive law, they are arguably violating the Presentment Clause, which dictates the protocol for turning a bill into a law.)  

In Chapter 4, Professor Redish turns to political theory, to set up his next constitutional argument.  He points out that most academic justifications draw heavily on political theory, and identifies three schools of thought that justify class actions.  The first is the utilitarian school (although most lawyers might recognize it as law and economics): which argues that class actions are justified because of the good effects they bring about.  The second is communitarian (what class-action lawyers often call the "entity theory"): class actions basically function as group rights, and function as an entity unto themselves rather than a joinder of individual claims.  The third is public action theory (which, as applied here, maps on to deterrence arguments justifying class actions): class actions are justified because they deter wrongdoing by large corporate entities.  What we need, Redish argues, is an "individualist" theory that justifies class actions based on the fact that individuals have a right to control their own lawsuits.
In Chapter 5, Professor Redish makes his best attempt at an individualist theory.  He starts out by recognizing that the common law system and constitutional law have given individuals personal roperty rights in any legal cause of action of which they are a part.  (These are called "choses in action.")  Because choses are a personal property right, they cannot be taken without due process.  And yet, according to Professor Redish, class actions deprive individuals of choses all the time, either because they are "mandatory" (like those under Rule 23(b)(1) and 23(b)(2)), or because they rely on the passivity of the class member.  This, according to Professor Redish is a serious problem.
Finally, in Chapter 6, Professor Redish takes on the phenomenon of settlement class actions, which he argues violate Article III’s "cause or controversy" requirement, since they do not involve any adversarial practice.  
Overall, Professor Redish’s book is a thoughtful and gimlet-eyed critique of the modern class action, and of modern class-acton scholarship.  Its largest problem is that, while it is long on theoretical critique, it is woefully lacking in analysis of in-the-trenches class action rulings.  This deficiency matters because in some cases, Professor Redish is critiquing things that aren’t really problems anymore.  I’m no big fan of class-action settlements, but courts already frown on "settlement class actions," and have since the Supreme Court decided Amchem in 1998 and Ortiz in 1999.  Certification of large settlement classes–even controversial ones–usually now comes after at least some adversarial practice.  (This is a phenomenon Professor Nagareda addressed in his 2007 book Mass Torts in a World of Settlement.)  It’s this lack of practical engagement with the class action as it’s actually litigated that makes Professor Redish’s arguments difficult to apply.  To see how, let’s take each of his three constitutional arguments in turn:
(1)  The non-delegation argument: because of its ability to confer a substantive right of action (a de facto "bounty hunter" provision) into statutes that don’t otherwise authorize one, Rule 23 (and possibly the Rules Enabling Act) is an unconstitutional delegation of government power.  This is a bold argument, but its boldness undercuts its likely effectiveness.  Class Actions have existed in their modern incarnation for more than 45 years.  It is extremely unlikely that a district court will decide to simply invalidate Rule 23 on non-delegation grounds, that a federal appeals court would reverse a district court’s refusal to do so, or that the Supreme Court would grant certiorari on this question.  One might eventually force this argument through the court system, but it would likely take a unified appellate campaign on the scope of Thurgood Marshall’s against institutionalized segregation.
(2)  The due process argument: given an individual’s property right in a chose of action, it is unconstitutional to deprive one of a chose without due process.  The largest problem with this line of argument is that a properly-certified class action arguably already meets the due process requirement.  At least, that’s what the Supreme Court has implicitly held when it has discussed the role of Rule 23 inensuring due process for litigants.
(3)  The "case or controversy" argument: class actions (in particular, settlement class actions) don’t address actual cases or controversies between parties.  Instead, they are manufactured by plaintiffs’ lawyers, fronted by class representatives who likely don’t care, and the settlements are agreed to by defendants eager to buy global peace.  The primary weakness to this argument is that it’s just not that true anymore.  Oh, plaintiffs lawyers still manufacture lawsuits, and class representatives are often disengaged or easily manipulable.  But the "settlement class action" is much rarer than it was pre-Amchem.  Moreover, while this is an outstanding challenge for an objector to keep in mind, you are unlikely to find many defendants who will want to torpedo their own settlements for the sake of a constitutional argument.
Does this mean that Professor Redish’s book is (as one of Herrmann’s commenters called academic scholarship in general) "useless and of little practical value"?  Hardly.  While I agree that too much class-action scholarship has too little connection to class-action practice, and while I wish Professor Redish had paid more attention to how courts were actually treating class actions in the wild, Wholesale Justice is still remarkably useful.  Like I said then, you can’t take Professor Redish’s arguments off the rack and present them in a brief, but you can use them to make specific arguments:
  • Class actions cannot enlarge substantive rights.  Defense lawyers make these arguments all the time, often citing many of the same sources that Redish does in his discussion of the Rules Enabling Act and the non-delegation doctrine.
  • Class actions are not superior to government action.  This is another favorite of class-action defense lawyers.  And this is somewhere that Professor Redish’s work can be particularly useful.  Drawing on his analysis of why it’s important to leave individuals with control over their own litigation ties in directly to some of the superiority language in Rule 23(b)(3).  
  • A class representative must be adequate.  I’ve made no secret of the fact that I think adequacy is misunderstood and underenforced in class-action practice. Professor Redish provides a strong constitutional foundation for arguing for a more rigorous adequacy inquiry.  After all, adequacy is the key to allowing a class action while preserving due process.  Given its importance, why would a court give that requirement short shrift?

Each of these arguments is one defense attorneys already make.  And each will be (and, frankly, have been in many cases) enhanced by a better understanding of Professor Redish’s work.  

So, when it comes to Wholesale Justice, where have the defense attorneys been?  We’ve been here the whole time.  Glad you could join us.
[Edited to more accurately describe one of the comments to Herrmann’s post.]