Martin Redish's 2009 Wholesale Justice is an attack on the constitutionality of class actions from the left. Plaintiffs' attorneys do not hesitate to act entrepreneurially and stake out aggressive positions for the expansion of liability. So, Mark Herrmann asks, where are the creative defense attorneys and corporate general counsels trying to build off of Redish to push back on class actions? [Also: Overlawyered; Lahav]
One can be highly skeptical that Redish will do much good at the district-court level. There's already a spectrum of judicial views of the class action, and the judges most likely to give a Redish argument a full airing are the judges who are already fairly applying Wal-Mart and Rule 23 to block abusive class actions. At the margin, Redish adds a lot of cost to develop a particular argument that adds little chance of success at the district court. But as I've argued before, general counsels and their defense attorneys need to be thinking more strategically about their law firms' litigation positions, focusing less on the individual battles, and more about ensuring the legal terrain is favorable. The plaintiffs' bar was able to tilt preemption doctrine in the wrong direction because their advocates were focused on coherent long-term goals, while pharmaceutical companies were hiring generalist Supreme Court advocates with impressive resumes but no history of thinking about these issues. Defendants need to play less whack-a-mole, and more chess: put in the investment at the district-court level to preserve the long-run appellate issue. There is a Supreme Court that has consistently held that the procedural efficiencies of the class action device do not permit the infringement of individual substantive rights, and, with rare exceptions, regularly slapped down lower courts that have tried to take shortcuts. Even if defendants may not have standing to raise some of Redish's arguments, there are surely public-interest organizations willing to represent absent class members who'd be willing to be the ones to float the proposition at the class-certification stage. Ahem.