Loyola of Los Angeles professor Georgene Vairo wrote a piece called What Goes Around, Comes Around: From the Rector of Barkway to Knowles for the Review of Litigation.
Professor Vairo’s piece makes two overall arguments: (1) the class action is a political, rather than procedural, problem; and (2) the recurring debates over use of the device will continue to "come around" until the Supreme Court decisively resolves the question of how preclusive a class action is supposed to be. The piece aims to be a comprehensive historical overview of the class action, from its medieval roots to the current debates over CAFA. But, in general, it tends to fall short. I think this is for several reasons:
- It’s a doctrinal rather than historical analysis. Unlike the excellent Sturm und Drang, which makes several of the same points, What Goes Around largely confines itself to discussing a few cases, which is a difficult way to show how historical trends operate in an area as diverse as class action litigation.
- It suffers from Supreme Court bias. With only a few exceptions (specifically, the discussions of the the 1966, 1998, and 2003 Rule 23 Amendments, a brief discussion of Agent Orange and In re Rhone-Poulenc Rorer, and a discussion of CAFA, the article is primarily concerned with how the Supreme Court has handled class actions over the years. No question, when the Court speaks, people listen. But there are vigorous debates at the trial and appellate levels that rarely, if ever, percolate up through the certiorari system. What Goes Around leaves those issues aside.
I may be overly critical. The article does provide a nice overview of several of the larger issues in class-action practice. I’d happily hand it to a new associate to give them idea of some of the recurring issues in class action practice. I just wish someone with Professor Vairo’s clearly accomplished CV had offered more new material, instead of rehashing many of the same approaches the academy has already made.