Bone, Robert G. --- "Class Action" [2012] ELECD 92; in Sanchirico, William Chris (ed), "Procedural Law and Economics" (Edward Elgar Publishing, 2012)

Book Title: Procedural Law and Economics

Editor(s): Sanchirico, William Chris

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847208248

Section: Chapter 4

Section Title: Class Action

Author(s): Bone, Robert G.

Number of pages: 18

Extract:

4 Class action
Robert G. Bone


1. Introduction1
The class action is a device that allows one or more parties, called "class
representatives," to sue on behalf of many other similarly situated persons,
called "absent class members" or "absentees." It traces its early roots to
medieval forms of group litigation and its modern shape to the courts of
equity of the seventeenth and eighteenth centuries (Yeazell 1989; Bone
1990).
The class action played a relatively minor role in American civil litiga-
tion through more than half of the twentieth century. In 1966, the federal
class action rule, Rule 23 of the Federal Rules of Civil Procedure, was
revised and expanded and ever since the class action has sparked intense
controversy. Class action supporters celebrate its potential for achieving
efficiency gains, redressing imbalances of litigating power, and enforcing
the substantive law effectively. Class action critics condemn its potential
for enriching class attorneys, pressuring risk-averse defendants to settle,
and giving high damage plaintiffs only average recovery. Indeed, the class
action has been called a "Frankenstein monster" and "legalized black-
mail" (Miller 1979, at 665­6, noting the sharp rhetoric).
Although Rule 23 authorizes class actions for plaintiffs and defendants,
virtually all class actions are brought on the plaintiff's side (Willging et al.
1996). The class need not have existed as a group prior to the litigation.
Class members can be, and usually are, total strangers to one another, with
nothing in common except the fact that they have all been ...