Defending Private Safety Regulation.

AuthorHasnas, John

The Conservative Case for Class Actions

By Brian T. Fitzpatrick

272 pp.; University of Chicago Press, 2019

In recent years, I have become leery of writing book reviews. The authors, who are sometimes people I know, have often poured their heart and soul into the book and a proper review requires me to say negative and sometimes harshly critical things about it. This usually makes me feel bad. Reviewing The Conservative Case for Class Actions is a welcome contrast. Finally, a book review that leaves me feeling good.

Vanderbilt law professor Brian T. Fitzpatrick has produced a well-constructed, informative, and clearly expressed argument for the value of class action lawsuits. But since reviewers are usually required to find something negative to say, I will point out that both the book's title and much of its exposition are misleadingly modest. Fitzpatrick has not given us the conservative case for class action; he has given us the case for class action. Throughout the book, he writes as though his argument is designed only for conservatives and he continually cites those he refers to as conservative scholars in support of his contentions. Perhaps this is done for rhetorical reasons. Perhaps he believes that liberals are already on board and need no convincing. Or perhaps he believes that characterizing conservatives as opposed to class action is enough to influence liberals to support them. Whatever the case, the rhetorical flourish is unnecessary. The book provides a well-reasoned argument for class action that should appeal to thoughtful readers regardless of prior ideological commitments.

While we are on the subject, I should probably warn the reader that in using the term "conservative," Fitzpatrick is not referring to today's members of the American political right: what might be called "Trump conservatives" if that were not oxymoronic. He uses the term to refer to what might be called Reagan conservatives: a big tent conception of conservatism that includes libertarians and market-friendly social conservatives.

Having gotten that out the way, let me get on with the review.

Nonpolitical safety regulation / The best thing about this book is that it is written not for other law professors, but for a non-expert audience. Its purpose is to explain the complex subject of class action lawsuits to ordinary members of the public, something that it does extraordinarily well. In a carefully crafted series of chapters, Fitzpatrick leads the reader through an understanding of, first, how the tort system works in general, and then the specific role class action lawsuits play within the system. It does this in language that is devoid of technical jargon and easily accessible to its intended audience.

As a Torts professor, I have become inured to having misrepresentations about virtually every aspect of the tort system widely disseminated to the public, as exemplified most notoriously by the McDonald's coffee cup case. This book is designed as an inoculation against the spread of this virus.

Fitzpatrick patiently and clearly explains that tort law is a subtle, nuanced, and powerful form of nonpolitical safety regulation. Although he never expresses it this way, what he is showing is that tort law and class action lawsuits are the market's internal regulatory mechanism. Perhaps this is why he calls his argument the "conservative" case for class actions.

In the book's early chapters, Fitzpatrick patiently and usefully explains the nature of tort law and distinguishes different referents for the term "regulation." In Chapter 2, he points out that markets need rules barring certain types of conduct in order to function. Rules prohibiting theft, fraud, breach of contract, and violence...

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