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Constitutional limits on class actions?

In this Cato Institute Policy Analysis from late June, Cato senior fellow Mark Moller, who is editor in chief of the Cato Supreme Court Review, argues that current class action procedures often deprive defendants of the due process to which they are constitutionally entitled under the Fifth and Fourteenth Amendments. In particular, he contends, the format deprives defendants of defenses they would ordinarily be entitled to assert and operates to coerce them into settlements not based on claims' underlying merit. His conclusion:

At a minimum, controlling unconstitutional class actions requires Congress to change federal class action rules. Necessary changes include (1) requirements that absent class members "opt in" before they are counted as part of the class and that courts assess the merits of legal claims before authorizing their litigation in the form of a class action and (2) a ban on class treatment of lawsuits in which key elements can be proven only on a case-by-case basis.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.