The class action is a procedural device aggregating the claims or defenses of similarly situated individuals so that they may be tried in a single lawsuit. In recent decades the class action has frequently served as the vehicle by which various groups have asserted constitutional claims. For example, all the minority-race school children in various districts have sued (through their parents) to rectify alleged RACIAL DISCRIMINATION on the part of school authorities; or, to illustrate a nonconstitutional claim, the buyers of home freezers have sued as a group claiming that the dealer had made fraudlent misrepresentations. In both examples the members of the class could have sued separately. The class action pulled these potential individual actions into a single lawsuit making litigation feasible for the members of the class (by permitting a single lawyer to try all their claims together). For the party opposing the class the suit has the advantage of providing a single adjudication of all similar claims and the disadvantage, especially marked in suits for money damages, that the entire potential liability to a large group turns on a single suit.
The class action depends on representation, and that concept draws the Constitution into the picture. In the class action most class members are represented by an active litigant whose success or failure binds the class members. Opinions interpreting the DUE PROCESS clauses of the Constitution (in the Fifth and FOURTEENTH ADMENDMENTS) suggest that normally one may not be bound by the results of litigation to which one is not a party. Yet the class action purports to do just that?to bind the absentee class members to the results of a suit in which they played no active role.
The Supreme Court and the drafters of state and federal class action rules have supplied two solutions to this apparent tension. The Supreme Court's answer came in Hansberry v. Lee (1940), in which the justices indicated that class actions could bind absentee class members if the active litigants adequately represented the class. If not, the Court reasoned, binding the absentees would deprive them of due process of law.
Adequate representation has two aspects, competence and congruence of interests. All would agree that adequate representation implies some absolute level of competence and diligence on the part of the class representative and attorney. Though few cases have specifically discussed the...