In 2009, Professor Martin H. Redish of Northwestern Law School published a book arguing that class actions are in large part unconstitutional: Wholesale Justice: Constitutional Democracy and the Problem of the Class Action Lawsuit (Stanford Univ. Press 2009). Where is the practicing bar?
I understand that nobody reads law review articles or books published by an academic press. And I wouldn’t condemn any practicing lawyer to reading any issue of a law review from cover to cover. But I don’t think it’s asking too much to insist that lawyers remain gently abreast of the academic literature in their field and deploy new ideas aggressively when scholars propose them. Redish’s book shows why in-house counsel should demand more of their outside lawyers.
This post is a two-fer: I’m going both substantive — by summarizing Redish’s argument about why many class actions are unconstitutional — and pragmatic — by criticizing law firms that ignore ideas springing up in the academy that should be used in litigation. (For me, drafting that two-fer is an unusual trick. As regular readers know, it’s typically hard to find even a single thought tucked into one of my columns.)
What does Redish say about class actions, and how have most law firms been derelict?
To learn what Redish says, read his book. If you can’t be bothered, here’s a link to a book review (by Professor Alexandra Lahav of Connecticut Law), which appeared in a recent issue of the Michigan Law Review. If you can’t be bothered with even a book review, then you can read the next two paragraphs of this post.
In a misleadingly over-simplified nutshell: First, Redish argues that legislatures create substantive rights to be enforced by individuals. Federal Rule of Civil Procedure 23 improperly transforms those individual rights into collective rights that can be pursued in a class action. That transformation of an individual right into a collective one is a substantive change that oversteps the Supreme Court’s rulemaking power, in violation of both separation of powers and the Rules Enabling Act. (It’s true that Congress implicitly approves amendments to the Federal Rules by failing to act before the statutory deadline. Redish suggests that any such “legislation by inaction” violates the Presentment Clause.)
Second, Redish argues that opt-out class actions cause individuals to participate in classwide cases without having affirmatively consented to doing so, violating a litigant’s right to freedom from association. Finally, Redish blasts settlement class actions, for a host of reasons not particularly relevant to the screed that I’m about to lay out.
My gripe is this: Redish may be right, and he may be wrong; I’m not taking sides here. I haven’t read the cases, and I don’t exactly have any firmly-held beliefs about the nuances of the Presentment Clause (whatever the heck that is). But Redish is a smart guy. His ideas are surely plausible, and no law firm would be sanctioned for making these arguments in a brief. So where are the law firms? Why isn’t every class action defense firm in America mentioning to clients that these arguments exist?
Redish’s arguments surely aren’t meant to be raised in every case. Some judges would view arguments against the constitutionality of class actions as acts of desperation, and counsel would lose credibility by even raising the idea. Other judges will be intrigued (or amused, or impressed) by counsel’s creativity, but will nonetheless reject the arguments, figuring that class actions have been implicitly accepted as constitutional since the Federal Rules began allowing them in 1966. But other judges, intellectually curious and perhaps concerned about perceived abuses of class actions, may well decide that Redish’s arguments have not been definitively considered by the Supreme Court (so the issues remain open) and have merit (which would end a class action threat for a client). For the right case, before the right trial judge, sitting within the right circuit, these arguments might have traction. Once you get into the appellate courts, or the Supreme Court, who knows where this will lead? Redish’s arguments, conceived in an ivory tower, deserve a hearing in appropriate courts.
What do I conclude? First, law firms have been derelict. They should have seized on this issue and started raising it with their clients the instant Redish’s book was published. Firms haven’t done this because they’re generally a step too far removed from the academy. (Look around you: Who at your firm is likely to have been aware that Redish’s book even exists? I rest my case.) (Okay, okay: Maybe Sidley, where Redish is Senior Counsel.) Second, in-house lawyers defending class actions must pick up the ball that outside lawyers have dropped. If your outside counsel hasn’t mentioned to you that class actions are arguably unconstitutional, it’s time to bring your lawyer up to speed. Finally, in a presumably scholarly profession, we should not embrace an anti-intellectual facade that hurts the quality of representation. I realize that I am sometimes personally guilty of this: What was my crack about the “Presentment Clause (whatever the heck that is)” if not anti-intellectualism? But this can be taken too far. I’ve heard trial lawyers say, for example: “We don’t need to hire brainiacs at my firm. We just need plain-talking folks who know how to communicate with a jury.”
Nonsense! Some people are able to walk and chew gum at the same time. Clients should insist that you hire those people. Clients should look for lawyers who are at least passingly engaged in the scholarship surrounding their field of law. Although much scholarship has little relevance to practicing lawyers, a small chunk of what’s written in the ivory towers could do clients a world of good. Competent lawyers will embrace those ideas and deploy them to good use.
Wholesale Justice: Constitutional Democracy and the Problem of the Class Action Lawsuit [Amazon (affiliate link)]
Mark Herrmann is the Vice President and Chief Counsel – Litigation at Aon, the world’s leading provider of risk management services, insurance and reinsurance brokerage, and human capital and management consulting. He is the author of The Curmudgeon’s Guide to Practicing Law (affiliate link). You can reach him by email at firstname.lastname@example.org.