The adaptive American judiciary: from classical adjudication to class action litigation.

• Author: Miller, Chris H.

ABSTRACT

Beginning primarily in the late-twentieth century, the American legal system underwent several rather dramatic changes in procedure and practice. In particular, class action litigation has become one of the distinguishing features of our legal system and it remains one of the most politically controversial areas of law. This article outlines recent fundamental changes in the American legal system by examining several prominent legal models suggested by scholars. It also specifically evaluates the class action device by theoretically analyzing several widely expressed concerns. Although these concerns are sensible, the history of the American legal system has demonstrated its remarkable adaptability and a careful analysis of specific concerns suggests some promising solutions, several of which have already resulted in considerable improvements.

INTRODUCTION

The American judiciary, particularly during the past several decades, has critically impacted our sociopolitical landscape. Federal courts have profoundly influenced nearly every major policy issue, including civil rights, women's issues, criminal punishment, health care, education, environmental regulation, corporate conduct, and consumer protection. Although a great deal of public discourse focuses on the policy issues themselves, legal scholars have identified fundamental changes in the formal structure and procedures of the courts as an underlying impetus of legal and political developments.

The purpose of this article is to provide a historical framework for evaluating developments in the American legal system and to demonstrate its remarkable versatility in resolving persisting institutional and procedural issues. In particular, this paper synthesizes existing scholarly literature on legal models and the major developments of the American legal system and evaluates claims regarding a relatively recent development--class action litigation. Part I presents the concept of a legal model and comments on its purposes and inherent limitations. Part II discusses the six most prominent legal models, in roughly chronological order, and then briefly identifies other trends and variations in the American legal system. Part III redirects the discussion to class action litigation and offers a brief history of the class action device. Part IV analyzes some of the most important concerns expressed by scholars regarding the potential consequences of class action litigation. Part V concludes the article by advocating a cautious but nevertheless optimistic reception of appropriate forms of class actions.

1. THE CONCEPT OF LEGAL MODELS

   In the social sciences, a model is a simplified, often graphical, representation of the essential process of a particular variable or institution at a single point in time. (1) Legal scholars frequently use models to describe the functions and processes of the legal system. In this scenario, a legal model deliberately captures the most essential components of the legal system in an attempt to account for the majority of outcomes. Most research that deals with legal models, however, fails to explicitly recognize their purposes and inherent limitations. Understanding the following basic qualities of legal models is critical to interpreting and applying them correctly.

   First, a legal model is a simplified description of the legal system. (2) It deliberately attempts to capture the essential features (3) of a system while excluding its insignificant features, thereby helping scholars to understand the most important system outcomes. Second, a legal model generalizes the fundamental components of the legal system. (4) In other words, legal models do not attempt to precisely describe the underlying process of every case in the system; rather, they explain how the system generally works, in most cases. Again, its fundamental purpose is parsimony--or the ability to describe a phenomenon economically. (5)

   Third, legal models are generally quite stable. Their qualities of simplification and generalization beg the question of when a traditional model (6) insufficiently describes the essence of the legal system and merits the construction of a new model. Although identifying and reconstructing models is largely a subjective process, legal scholars generally favor longevity until a model clearly fails to account for important qualities and outcomes. (7) This requires scholars to carefully determine when the legal system has breached a recognizable threshold of change and avoid revolutionizing every minor or isolated system change.

   Fourth, legal models typically employ stepwise (8) models to describe processes. This feature is frequently misleading, as it suggests that wholesale changes neatly unfold in lockstep fashion. In actuality, however, emerging systems typically unfold rather gradually as they coexist and dynamically interact with pre-existing features. More sophisticated models reflect these considerations and frequently include features such as multivariate causation, (9) variable interaction, (10) and bidirectional influences.

   Fifth, legal models can be either descriptive or prescriptive. Most of the models discussed in this paper are descriptive in nature, or attempt to objectively describe the most essential features of the legal system, regardless of whether the author views them positively or negatively. Prescriptive models, on the other hand, represent what a particular author believes the legal system should look like, in order to maximize benefits and minimize costs. (11) Even descriptive models, however, are only useful to the extent they allow us to more fully understand the advantages and disadvantages of a particular manner of legal procedures and suggest mechanisms for improvement. Indeed, nearly all legal models have normative underpinnings and their authors frequently articulate normative reactions and prescriptive suggestions to those models. (12)

   In summary, a successful legal model illuminates the most essential features of the legal system and enables researchers to identify its strengths and weaknesses and suggest reforms to improve its quality. Scholars should, however, maintain awareness that the inherent properties of legal models prevent them from describing every feature and case of the system and should proceed with an adequate degree of attentiveness to particular nuances and exceptional features. As Professor Rubenstein notes,

   [A legal model] is no doubt both underdrawn and overdrawn. It is underdrawn because it is just a sketch that needs further elucidation, application, and refinement. It is overdrawn because it is meant to be a model--crass, reductive, simplistic--but nonetheless recognizable. Surely all litigation has aspects of adjudication, management, and dealmaking. None of these models is clean, nor ever entirely explanatory or perfectly predictive of judicial behavior. Yet, each model focuses our thinking and re-orients our imagination. All models are, '"of course, human creations,' and thus, are not meant perfectly to reflect the real world, but rather to 'invite conversation and to appeal to the reader in a search for understanding.'" (13) II. PROMINENT LEGAL MODELS

   Beginning with Lon Fuller and Abram Chayes, legal scholars frequently described the American legal system according to several prominent models. They also accounted for important changes by revising inherited models to more accurately reflect contemporary features of the legal system and provide an adequate framework for understanding and describing legal issues and processes. The history and development of the American legal system can be constructively described in terms of six prominent models: (1) Fuller's traditional model, (2) Chayes' public law model, (3) Resnik and Horowitz's managerial model, (4) Eisenberg's consultative process model, (5) Rubenstein and Mullenix's transactional model, and (6) Sabel and Simon's experimental model. The following subsections examine each of these models in roughly chronological order.

   1. The Traditional Model

      In 1978, Harvard Law Review posthumously published Lon Fuller's seminal article entitled The Forms and Limits of Adjudication, (14) which is the standard text used by legal professionals to describe the traditional model of the American legal system. Fuller defines the traditional legal process as "a process of decision that grants to the affected party a form of participation that consists [of] the opportunity to present proofs and reasoned arguments." (15) His conception of traditional adjudication explicitly includes five essential elements: (1) an accuser, (2) an accused, (3) an adjudicator, (4) a legal charge, and (5) a principle condemning the alleged crime. (16) According to this model, legal parties have clearly defined roles and participate in a dispute over a well-defined private issue. (17)

      Subsequently, several prominent scholars have commented and expanded on Fuller's conception and have contributed to our understanding of the traditional legal model. For example, Chayes describes the traditional model as follows: "In our received tradition, the lawsuit is a vehicle for settling disputes between private parties about private rights." (18) He also offers five essential elements: (1) bipolarity, (2) retrospective litigation, (3) right-based remedy, (4) self-contained impact, and (5) party-initiation and party-control. (19) According to this description, the American legal system attempts to resolve a dispute between two private parties regarding a previously committed violation of a right. Additionally, Rubenstein describes the traditional legal model, stating that "[t]he traditional premise of American civil adjudication is that ours is an adversary system: Litigation is a process by which an impartial arbiter resolves a dispute between private parties following an adversarial demonstration of privately developed facts and zealously presented legal arguments."...