Professor Jay Tidmarsh of the University of Notre Dame has a new article on superiority: Superiority as Unity, 107 Nw. U. L. Rev. 565 (2013). The piece is heavily influenced by Martin Redish's book Wholesale Justice. In particular, Professor Tidmarsh takes Professor Redish's critiques of the class action' flaws seriously, and proposes a new set of inquiries (which he calls "superiority," even though it is not really the Rule 23(b)(3) superiority we know) as a test for when a class action is appropriate.
From the abstract:
This Essay begins from the opposite premise: that class actions should be grounded in the notion of social utility rather than autonomy so that class actions should be used whenever they achieve net social gains. This idea of “superiority” presents some difficulties, not the least of which is the capacity of a court to determine whether a class action is indeed superior to other forms of dispute resolution. The Essay proposes a series of presumptions that give effect to superiority and make an inquiry into superiority easier for courts to conduct. When the results obtained by these presumptions are examined, they do not result in the near-absolute position against class actions that Professor Redish favors, but surprising convergences in the autonomy and utility approaches emerge.
There are two aspects of Tidmarsh's article of immediate practical use. First, his take on superiority has some application to current litigation:
“Superiority” is inherently a comparative inquiry: the class action must be compared to other options that a government has established to resolve disputes over legal rights. A range of alternatives can exist. One option for the government is to do nothing and let harm lie where it falls. Another is direct government intervention, either through regulating behavior ex ante or pursuing civil or criminal actions ex post. A third is to allow parties to resolve disputes privately—through arbitration, settlement, or the like. A fourth is private litigation, with the government, through its court system, hosting and resolving claims presented to it.
Under the private-litigation option, various suboptions for resolving wide-scale disputes exist. One is individual litigation, with a separate case brought by each affected person. Another is group litigation, in which victims voluntarily join together or courts consolidate their individually filed cases. Yet another is a bellwether process, in which the claims of some victims receive a full hearing and the claims of other victims are determined or settled on the basis of these decisions. Any of these processes may be married to a preclusion process in which (by consent or judicial fiat) the findings or results attained in early cases bind other victims. A government may make available some of these suboptions and not others, and the available suboptions may overlap with each other. The American litigation system, for example, sets individual litigation as its default position, but it also offers all of the litigation alternatives—although it severely constrains the use of the preclusion option.
(Emphasis added, internal footnotes omitted.) He also points out that--much as some courts have--the superiority analysis is a global one.
Benefits and costs must be calculated on a global basis, not just on the benefits or costs to the parties. Not every class action generates the same benefits or creates the same costs.
The second use is to point out that even this explicitly policy-focused version of the class action (which is most similar to the deterrence story plaintiffs like to tell) does not justify many of the class actions that plaintiffs file.
Professor Tidmarsh's take on superiority is that it requires unity along at least one of three axes (facts, legal theory, and remedies), and substantial overlap on the other two. In essence, this is a simplified version of the various overlapping inquiries about commonality, predominance (or cohesion), and typicality.
Even though treating superiority seriously, as the superiority as unity concept does, reworks the law of class actions significantly, it is not likely to expand the scope of present class action law. The reason is the requirement of unity with respect to the liability-related facts, legal theory, or remedy. Unity—in other words, an identity of facts, law, or remedy for each and every class member—is difficult to demonstrate. But it is also almost always necessary if class treatment is to be deemed superior. Without unity along at least one dimension of a case, the aggregation of individuals is too ragged and too lacking in cohesion to justify legal recognition as a group capable of uniting together and being bound by the result achieved in a single courtroom. Unity also keeps alive the prospect that an entire aspect of the case (and perhaps the entire case itself) can be resolved in one fell swoop.
(Emphasis added.) It's an interesting theory, although one that's unlikely to get too much traction in its current form. (Indeed, one could argue that Judge Posner adopted something similar to this when he attempted to "clarify" predominance in Butler v. Sears, Roebuck & Co.) But it does highlight one important aspect of class action law: the class action is not an all-purpose lever; it is a specific tool that is applicable only in specific circumstances.