University of Chicago Law Review Publishes Article on Settlement Class Actions

The University of Chicago Law Review has just published an article by Martin H. Redish and Andrianna D. Kastanek entitled Settlement Class Actions, The Case-or-Controversy Requirement, and the Nature of the Adjudicatory Process, 73 U. Chi. L. Rev. 545 (2006). Here is an excerpt from the Introduction:

It would hardly be an overstatement to suggest that the nature of the litigation process has changed dramatically over the past forty years. Modern procedure has been altered to keep up with the significant changes over the same period in the governing substantive law, which has significantly expanded the scope of private responsibility and liability through the rapid expansion of both statutory and common law bases for suit. This is particularly true in the areas of civil rights, consumer protection, and products liability. Experts may reasonably debate whether the socioeconomic and political effects of these changes in substantive law are beneficial or harmful. But few would doubt the troubled state in which modern litigation procedure finds itself as a result, at least in large part, of the dramatic expansion of the scope of substantive liability. The procedural device routinely employed as the means of resolving the countless individual claims that may now be made against economically powerful defendants is the class action, authorized for use in the federal courts by Rule 23 of the Federal Rules of Civil Procedure. Though the device finds its origins in ancient practice and received codification in the original Federal Rules of Civil Procedure in 1938, the practice assumed its modern form--dramatically different from its earlier structure--in the amendments of 1966. Although that alteration was designed to make the class action device capable of resolving the disputes to which the dramatic expansion in substantive liability was to give rise, the difficulties inherent in any attempt to resolve thousands of parallel, but not necessarily identical, claims in one proceeding could not have been foreseen. The sometimes overwhelming complications that inevitably accompany an attempt to litigate countless claims in one proceeding have proven to be more than the device is capable of handling.

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The Article is designed to serve two important functions, neither of which has yet been attempted in the literature or judicial decisions. First, it provides a detailed examination of the textual and normative groundings of the adverseness requirement that the Supreme Court has regularly gleaned from the case-or-controversy requirement. Second, it explores the fatal constitutional difficulties created by the settlement class action device. It is time for commentators on class actions to move beyond the constitutional vacuum in which they traditionally view the procedure and instead consider it within the much broader constitutional and political framework of which it is only a small part.