One of the primary problems that vexes class-action scholars is often referred to as the "agency problem" (or, more recently, the "governance problem"). In other words, how do we ensure that the people in charge of a class action (nominally the named plaintiff, really the class counsel) actually serve the interests of the class, instead of themselves?
As Professor Issacharoff understands it, the central problem in class action jurisprudence is:
the nature of the authority to resolve contested legal claims on behalf of others.
For Professor Issacharoff, that question is unavoidable, because modern society is capable of mass harms–that is, harms that affect a large number of people at once, even if the injury to each person is slight. Issacharoff comes from the perspective that "mass harms require mass solutions," and that the class-action is the best way to level the playing field between plaintiffs who only have one day in court, and defendants who seem to spend much of their time there.
The resulting asymmetry in stakes between the single-shot plaintiff and the repeat-play defendant dooms the small player in litigation, already incapacitated by the frequent problem of the low stakes that any individual claimant may have serving to discourage suit. Hence the oft-repeated observation about how in litigation the haves come out ahead. Repeat play demands greater attention to litigation, justifies greater expenditures on prosecution of the claims, and forces the institutional actor to view even a small lawsuit as a broad threat. Thus the centrality of the class action in the limited stakes, negative value litigation context. The decision to aggregate creates symmetry in the litigation’s stakes, and justifies the cost of prosecution at a level commensurate to that of the defence.
(Emphasis added.) And he sees the adequacy requirement as one of the largest problems facing that resolution. He recognizes that adequacy is the current doctrine used to ensure that absent class members and defendants receive some measure of due process. But, as he comments:
The critical issue about these cases is that they do not put a court in the uncomfortable position of selecting an agent who is somehow “able enough” to speak on behalf of others and bind them to the effect of an adverse judgment.
(Emphasis added.) Professor Issacharoff’s article is a law review article of the classic form. That is, he isn’t so much interested in solutions as he is in framing the problem, and seeing whether it explains the latest developments in class-action doctrine, specifically the rulings in Dukes, Bayer, Halliburton, and Concepcion. And, arguable misreading of Eisen aside, he makes a number of good points along the way.
There is no immediate practical application for this article, but it’s still worth a read. Why? A number of reasons:
- Issacharoff is one of the deans of class action scholarship; so he’s likely to be very influential in the debate.
- The "mass harms require mass solutions" argument is a relatively strong rhetorical position, arguably stronger than the "class actions deter" argument so often made.
- This highlights, once again, that adequacy of representation is a serious problem for many plaintiffs, and a profitable area for defendants to investigate.