JACOBINS AT JUSTICE: THE (FAILED) CLASS ACTION REVOLUTION OF 1978 AND THE PUZZLE OF AMERICAN PROCEDURAL POLITICAL ECONOMY.

• Author: Engstrom, David Freeman
• Position: Special Issue on Class Actions

INTRODUCTION 1532 I. MAN ON THE BARRICADES 1537 II. A REVOLUTIONARY PROPOSAL 1541 III. TURF BATTLES 1546 IV. AN UNRULY CHORUS 1550 V. THE END OF REFORM 1555 VI. LESSONS FOR AMERICAN PROCEDURAL POLITICAL ECONOMY - 1558 INTRODUCTION

"No man is an Hand, intire of it selfe; every man is a peece of the Continent, a part of the maine . . . ." (1) So began, with a Donne-ian flourish, Kalven and Rosenfield's iconic 1941 article on the future of the "class suit." (2) The article is rightly celebrated for the clarity of its vision and--written at the height of the New Deal--the zeitgeist-bucking power of its claim that FDR's alphabet soup of agencies was ill-equipped to achieve sound administration of justice on its own. (3) Rather, private civil enforcement--and, in particular, the "class suit"--should and would play a central role going forward. But lost in the celebrations of their prescience is a less noted contribution: Kalven and Rosenfield quietly indulged, and thus helped to cement, a presumption about the relationship between litigation and administration that has channeled, and distorted, our thinking about class actions and civil procedure more generally ever since. "The best solution," they wrote, "is to draw upon both systems of enforcement, permitting both to develop side by side to check and complement each other." (4) Litigation and administration should, on this view, operate and evolve as parallel, separate means of civil law enforcement, serving as institutional rivals--not partners--in ambition-checking equilibrium. (5) Contrary to the Donne-ian verse that headed their article, agency regulation and the "class suit" should thus very much remain separate islands--part of a broader regulatory archipelago for sure, but islands nonetheless.

This presumption is now found virtually everywhere in debate about the role of litigation in the American regulatory state. (6) It sits just below the surface in disputes about whether litigation and regulation function as substitutes or complements. (7) It is implicit in a venerable law and economics literature that paints a stylized contrast between regulation and litigation and also between public and private enforcement, and argues for selective use of one over the other. (8) It undergirds the deeper notion, sketched best by Sean Farhang, that private civil enforcement constitutes its own "litigation state" and is a distinct and deliberate form of state regulatory power. (9) And, within the American legal tradition more generally, the "parallel" presumption both reflects and feeds a pervasive "institutional Diceyism," as Daniel Ernest has put it, (10) that courts and agencies follow different institutional logics and that only the courts or court-like procedures can achieve "rule of law" or safeguard due process against political incursions. (11)

Not everyone buys in. A few scholars have argued that the better course is to combine litigation and administration in creative ways to produce a conjoined, not parallel, approach. The late Richard Nagareda proposed a regime for resolving mass torts litigation in which an administrative agency would wield what amounted to negotiated-rulemaking powers. (12) And a number of other scholars have proposed variants of agency "gatekeeping" whereby public agencies would be vested with the power to manage private litigation efforts, including the ability to take over control of particular lawsuits or dismiss them outright. (13) Even Congress has, on occasion, entertained more innovative institutional blends: The Fair Labor Standards Act, the False Claims Act, and the "citizen suit" provisions that pervade federal environmental law all represent, to varying degrees, hybrid public-private frameworks. (14) But these are rare exceptions. Indeed, looking out over our most consequential regulatory regimes and the debates that surround them, it is no stretch to say that litigation and administration have spent the decades since Kalven and Rosenfield first addressed the issue marooned on separate islands, while alternative institutional visions have remained hidden coves, tucked away from the swirling currents and crashing waves of criticism and reform.

All of this presents a puzzle: Why, given the ready availability of alternative visions, has the parallel/island approach won out? And, to pose the question from the other direction, why has a conjoined--or blended, or hybrid--approach not gained more traction?

One could start to search for answers by invoking some of the usual explanations for why American litigation and procedure look this way. Among these are the unique American embrace of due process and the silo-ed, "day in court" ideal that extends from it; (15) an American rights tradition that produces a dread of all government, but especially the bureaucratic variety; (16) and a separation-of-powers constitutional structure that provides potent incentives for strategic legislators to channel exclusive regulatory power to the courts. (17) This brief essay, however, seeks a more concrete source of insight by focusing in on a relatively recent but mostly forgotten episode in the history of the American class action. (18) In 1978, in the lull between the 1966 revisions to Rule 23 and the class action wars of the 1980s and 90s, Congress considered a proposal from the now-defunct Office for Improvements in the Administration of Justice (OLAJ), a "think tank" created within the Carter Administration Justice Department (DOJ) that offered a radical reinterpretation of the class action lawsuit. (19) At the proposal's core was a "public action" for "widespread small claims" situations that would have replaced much of Rule 23 with a hybrid public-private enforcement model--similar to the False Claims Act--that granted the DOJ substantial control over privately initiated lawsuits and allowed successful "relators" to earn a finder's fee for their efforts. (20)

Despite months of shuttle diplomacy among key interest groups, bills in the ninety-fifth and ninety-sixth Congresses, and full-scale committee hearings, this revolutionary "blend of private initiative with [] public responsibility," (21) as one of the proposal's progenitors described the design, soon fizzled. The episode could thus be dismissed as merely a blip in the long and colorful history of the class action. But it was also one of those hinge moments when a range of evolutionary paths seemed open and, crucially, when key features of the modern-day American litigation landscape we now take for granted--active and powerful state attorneys general, federal agencies with litigation authority independent of the DOJ, and a well-heeled and specialized plaintiffs' bar--were still largely in their embryonic stages. Looking back, the Justice Department officials who floated the proposal and then fought to will it into existence were procedural Jacobins, seeking the radical overthrow of a rapidly solidifying establishment order of things. (22) Their failure to carry the day was a decisive episode--the last best chance to shift Kalven and Rosenfield's "parallel" paradigm. No telling of the history of Rule 23 and the American class action is complete without it.

But, recovering the failed revolution of 1978 offers more than just an opportunity to recount a pivotal moment in class action history, for the revolutionaries inside the DOJ were not merely seeking a one-off change to the class action rules. They also sought to counter what they saw as an increasingly narrow rulemaking process and growing polyphony within the American regulatory state by bringing the executive branch more firmly into the picture and giving the DOJ in particular a central role in judicial administration. Viewed through this lens, the episode invites wider reflection and highlights the need for an institutional turn in our thinking about American civil procedure and the political economy that produces it. With the "class suit" a continuing subject of debate within the Advisory Committee, Congress, and elsewhere, (23) the failure of 1978 serves as a reminder that alternative visions--including the kinds of institutional blends embodied by the DOJ proposal--are available and might just be the optimal approach. More generally, the episode suggests that civil procedure scholars should adopt a wider angle of vision than they typically have and develop a richer and more institutionally focused account of American procedural political economy that looks beyond the output of the rulemaking process prescribed by the Rules Enabling Act. Indeed, lurking in the background of the story of 1978 is the bracing possibility that the Enabling Act, for all its virtues in revising technocratic rules governing service of process, electronic discovery, and the like, has been a systematically enervating force when it comes to addressing larger procedural design questions in an increasingly dense and interconnected regulatory world.

1. MAN ON THE BARRICADES

   From the start, Daniel Meador was a juggernaut. Within only weeks of his arrival at the DOJ from a faculty position at the University of Virginia School of Law, Meador had mapped out a "two-year program" listing no fewer than eighteen aspects of the judicial system in urgent need of reform, from revisions to pretrial and appellate procedures and an increase in the jurisdiction of magistrates to the promulgation of criminal sentencing guidelines and the creation of "alternatives to class actions as remedies for mass wrongs." (24) Meador was also in a unique--and, for a legal academic, downright dreamy--position to see them through. Tapped by Attorney General Griffin Bell to head up the Justice Department's newly formed Office for the Improvement of the Administration of Justice (OIAJ) (25), Meador suddenly found himself with organizational leverage--including a staff of thirty lawyers, economists, sociologists, and administrative support (26)--and the frequent ear of the...