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Constitutional infirmities of class actions?

Mark K. Moller of the Cato Institute has an article in the Harvard Journal of Law and Public Policy (Summer 2005). SSRN abstract follows:

This article (1) argues that litigating claims in the form of a class action sometimes violates due process and (2) suggests an original framework for reforming the class device, which flows naturally from analyzing class action abuse as a problem of constitutional dimension.

Part I explains the roots of the due process problem with class actions - which I term the rule of law problem - and addresses a variety of counter-arguments. Briefly, liberty depends upon individuals' ability to plan their conduct against a backdrop of predictable rules and consequences. Yet, courts managing class actions frequently unsettle established legal prescriptions in order to facilitate aggregated proceedings. Worse, they do so without reference to any intelligible principle, spawning deep uncertainty about the acts that might give rise to liability in the class context. The rule of law problem is, moreover, exacerbated by the structure of the federal multidistrict litigation procedures.

Part II analyzes the Class Action Fairness Act, concluding it is unlikely to resolve the rule of law problem and, furthermore, may be inconsistent with the text of Article III. I then propose a series of additional reforms designed to incentivize constitutional objections to class actions at the state and federal levels. These changes, which include expansion of federal removal power over constitutionally suspect class actions litigated under inadequate state procedural protections, promote three overarching structural goals: decentralization of mass litigation, cooperative federalism, and judicial review. The proposed reforms are consistent with the the structural considerations that animate the Court's current understanding of federalism and separation-of-powers.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.