Northwestern Law professor Martin Redish should be very familiar to readers of this blog. I’ve covered his work before, from his constitutional challenges to the class action through his critique of the cy pres remedy to his surprising turn to what looked like a “trust model” of the class action last year. Professor Redish’s work is—unlike many modern class action scholars—not easily classified. I’ve said before, and I’ll likely say again (I’m certainly saying it now): you ignore Professor Redish at your peril.
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.
Last year, I discussed Northwestern professor Martin Redish’s argument that class actions are unconstitutional. Redish had predicted–and I largely agreed–that the argument would fall on deaf ears. It turns out we were both wrong. Leaving aside those defense lawyers who adopted his arguments about the Rules Enabling Act, Alexandra Lahav of the University of Connecticut has now reviewed his book Wholesale Justice.
Lahav praises the book, but largely disagrees with its conclusions. Specifically, she takes issue with Redish’s argument that class actions violate separation of powers, and that they lack democratic accountability.
In arguing against Redish’s separation-of-powers critique, … Continue Reading
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 … Continue Reading
Martin Redish is back in the news. In the past week, he’s been written up in Forbes and the ABA Journal, as well as a series of associated blog posts by academics like Elizabeth Chamblee Burch. The Forbes profile – which kicked off the coverage – quotes him as saying that the rights held by class action litigants:
are individually held rights … What a lot of class action scholars and proponents have done–quite cleverly, I must say–is engage in a sort of alchemy to transform individual rights into collective rights.
The Forbes profile doesn’t focus on any particular work … Continue Reading
Martin Redish, joined by Peter Julian and Samantha Zyontz, is coming out with a new article, "Cy Pres Relief and the Pathologies of the Modern Class Action: A Normative and Empirical Analysis." It’s well-researched, and well-written, but I want to address the strategic implications of some of their arguments.
Cy pres relief (from the old Norman, roughly meaning "next best") is a form of relief courts use when they cannot distribute damages to the entire class, either because some class members cannot be found, or because some won’t bother to collect. The defendant sets aside the total amount … Continue Reading