So far, 2013 has been a good year for interesting legal scholarship about class actions. Last week I wrote about Dean Robert Klonoff's newest article on the often-overlooked Rule 23(b) (1). This week, I have the great pleasure of linking to the latest article by Arizona professor (visiting this year at Yale) David Marcus, The History of the Modern Class Action, Part I: Sturm und Drang, 1953–1980.
Professor Marcus has written interesting and thoughtful work on class actions before. But this article (which is Part I of a projected series), is one of the most interesting and significant pieces on class action practice to come along in a while. Professor Marcus bases his historical account of the class action device heavily in facts, and works hard to maintain a balance between the rhetorical spins that plaintiffs and defendants tend to place on early class action cases.
His unifying thesis is that the debate over class actions during this period reflects an ongoing debate between "regulatory" (deterrence) and "adjectival" (procedural) conceptions of class action. In particular, he contends that most courts resolved this conflict by not deciding it in one direction or the other. (This is what Harvard Professor Cass Sunstein might an "incompletely theorized agreement.")
This domestication of Rule 23 resulted in some doctrinal incoherence, but it succeeded in stabilizing class action law and politics by the end of the 1970s. This strategy would match how decision-makers have regulated public administration more generally, a fitting equivalence given Rule 23’s importance to the American regulatory state.
But it's not just the overall thesis that is so interesting. It's also some of the more specific findings Marcus makes. Among them:
Reports of the demise of the class action have been around since 1970.
“Predictions of Gotterdamerung are not lightly to be made,” Simon Rifkind said of class actions in 1970, and yet torrents of such overheated claims, about the imminent demise of class actions or the existential threat they posed to American capitalism, came throughout the decade.
The Advisory Committee had no idea what the effects of the device would be in 1966.
Rule 23’s authors could not possibly have anticipated the ways in which class litigation would contribute to public administration, since they completed their work on Rule 23 before the seismic shifts in American law and politics made the 1960s The Sixties.
The 1970s involved heated debates that look very familiar today.
The class action wars of the 1970s have historical significance for at least two reasons. First, combatants quickly exhausted virtually every claim for and against an invigorated Rule 23. Debates since have consisted largely of recycled doctrinal and rhetorical claims, suggesting either the stability of class action doctrine or the limits of the lawyer’s imagination (or both).
The primary takeaway from this article is that the debates over class action doctrine are hardly new, and therefore, it may very well behoove class action lawyers to look a little further back than just the 1990s for an idea of how courts have handled some Rule 23 questions. They can start with this article.