The Liberal Case Against the Modern Class Action
Those who classify themselves as liberal generally favor widespread use of class actions as a means of policing corporate misbehavior and protecting the individual worker or consumer against capitalist excesses. In this Essay, however, I take the counterintuitive position that while class action practice could conceivably be modified in ways that make it far more acceptable than it currently is, liberal political theory should be very skeptical of the modern class action device as it currently exists. Defining the foundation of liberal thought as a process-based belief in accountable democratic government and respect for the right of individuals to protect their rights by resort to the judicial process, I find that in all too many cases, the modern class action is substantially inconsistent with this liberal ideal. In their current form, class actions often serve as a means to deceptively alter existing substantive law through backdoor procedural transformation. This undermines both foundational premises of process-based liberalism.
Martin H. Redish