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.
(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.)
- 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.