Procedure, Policy and Power: Class Actions and Social Justice in Historical and Comparative Perspective
| Citation | Vol. 24 No. 3 |
| Publication year | 2010 |
Georgia State University Law Review
3-21-2012
Procedure, Policy and Power: Class Actions and Social Justice in Historical and Comparative Perspective
Francisco Valdes
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Recommended Citation
Valdes, Francisco (2007) "Procedure, Policy and Power: Class Actions and Social Justice in Historical and Comparative Perspective," Georgia State University Law Review: Vol. 24: Iss. 3, Article 7. Available at: http://digitalarchive.gsu.edu/gsulr/vol24/iss3/7
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PROCEDURE, POLICY AND POWER: CLASS ACTIONS AND SOCIAL JUSTICE IN HISTORICAL AND COMPARATIVE PERSPECTIVE
Francisco Valdes*
Introduction
The aggregation of individual claims in the context of a classwide suit is an evolutionary response to the existence of injuries unremedied by the regulatory action of government. Where it is not economically feasible to obtain relief within the traditional framework of a multiplicity of small individual suits for damages, aggrieved persons may be without any effective redress unless they may employ the class-action device .... This, of course, is a central concept of Rule 23.
Chief Justice Warren Burger1
On July 23, 2007, veterans of the United States Military Services filed a lawsuit against the federal government seeking declaratory and injunctive relief for failures in providing medical treatment to troops wounded in Iraq and Afghanistan.2 The complaint seeks
* Professor, and Co-Director of Hispanic & Caribbean Legal Studies Center, University of Miami School of Law. I thank the organizers of the symposium that occasioned this Essay, and the editors of the Law Review for their generous and gracious help in its publication. In particular, I thank Cylinda C. Parga, Nancy Rhinehart, and Erin Witcher for their help in improving this Essay. In addition, I am grateful to Professor Colin Crawford for another opportunity to collaborate on a rich and enriching scholarly enterprise. All errors are mine.
1. Deposit Guar. Nat'l Bank v. Roper, 445 U.S. 326,339, 338 n.9 (1980).
2. The complaint states:
This is a class action for declaratory and injunctive relief challenging the constitutionality of provisions in the Veterans Judicial Review Act of 1988, in conjunction with the related, pre-existing statutes and a pattern of illegal policies and practices of the Department of Veteran Affairs. The putative class is compromised of applicants and recipients for service-connected death or disability compensation, including dependency and indemnity compensation (collectively "SCDDC") claims, based upon Post-Traumatic Stress Disorder, and all veterans with PTSD who are eligible for or receive VA Medical Services, as defined below (occasionally collectively referred to as "the Class" or the "Class Members").
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certification of a nationwide class numbering from one-third to two-thirds of a million such veterans.3 This case, from one perspective, may be seen as quite the spectacle: wounded troops suing their sovereign for substandard medical treatment of their battle wounds. From another perspective, this case may be seen as a salutary effort to promote systemic and societal efficiency, as well as social justice for individuals and groups in the vindication of rights established by the rules of the sovereign to govern these tragic situations.
This case illustrates the varied reasons why the class action device has been made a lightning rod for procedural controversy—at least in the twentieth century—in every society that has discussed or experimented with this remarkable device. But the class action was not always such a lightning rod. An ancient and venerable fixture of procedure (within Anglo-Saxon legal systems), the class action device has come increasingly under attack—a "holy war"—only in the last half century.4 This short Essay explores why.
We begin with the origins and uses of the class action in the Anglo-Saxon, common law context as charted by leading procedural scholars during the past half century or so. With this broad historical context in place, we then turn to the objections that have sprouted in recent decades. Linking the two, we turn to unstated power dynamics that help to explain the "holy war" against class actions in recent times. As we will see, this "holy war" directed specifically against class actions is in fact part of a larger backlash against the legal heritage of the past near-century. This larger backlash, as outlined below, is a decades-long, multi-faceted and determined campaign to roll back civil rights in particular, and liberalism in general. This focus should help to contextualize both the modern class action as well as the efforts to eviscerate it through various "reform" efforts. However, this focus and context should not mistakenly lead to the
Complaint for Declaratory & Injunctive Relief Under United States Constitution & Rehabilitation Act at 9, Veterans for Common Sense v. Nicholson, No. C 07-3758 (N.D. Cal. July 23,2007).
3. Id.
4. This apt term is Professor Miller's. See Arthur R Miller, Of Frankenstein Monsters and Shining Knights: Myth, Reality, and the "Class Action Problem," 92 harv. L. REV. 664, 664 (1979).
Valdes: Procedure, Policy and Power: Class Actions and Social Justice in 2008] CLASS ACTIONS AND SOCIAL JUSTICE 629
conclusion that all criticism of class actions is necessarily ideological, unprincipled, or pre-textual.5 On the contrary, this focus is designed to enable interested observers and reformers to better sift legitimate concerns from "holy war" maneuvers.
With this more current context also in place, we then can see that, although both courts and commentators have long regarded the class action has as a vehicle for protecting individual rights, in modern times it has evolved specifically into an antisubordination procedural device. By "antisubordination"6 device I mean that, during the past century, the class action has become instrumental in the ongoing struggle for equal justice under law, in a myriad of cultural and economic situations, and it is this evolution that underlies the "holy war" of the past half century against this traditional procedure. Focusing squarely on these social and legal dynamics, we conclude with a consideration of bedrock social and legal values that can help point the way toward a systemic, principled resolution to basic questions of power, policy, and procedure associated with class action controversies.
I. Classes and Actions: Origins, Histories, Purposes
The class action has been a freak from birth, a useful—perhaps an essential—bastard, but one whose existence nonetheless makes us question the categories that polite legal society uses to order the world.
- Professor Stephen C. Yeazell7
Various scholars have traced the origins of class actions rather meticulously over the past several decades,8 notably Stephen
5. See infra notes 96-107 and accompanying text (on legitimate concerns, issues or problems under Rule 23).
6. See infra notes 69-94 and accompanying text (on antisubordination).
7. Stephen C. Yeazell, Group Litigation and Social Context: Toward a History of the Class Action, 77 Colum. L. Rev. 866, 866 (1977) [hereinafter, Yeazell, Social Context].
8. See, e.g., David L. Shapiro, Class Actions: The Class as Party and Client, 73 notre dame L. Rev. 913, 914 n.2 (1998) (providing a bibliography of sources); see also William Weiner & Delphine
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Yeazell.9 As a result, we now know that the earliest uses of the thing now known generally as the class action were in England, and that the actions emerged as that country's social, economic, and political structures and relations were transitioning from feudal arrangements to a more mercantile framework.10 In the process of that macro-transition in English society, powerful institutions and actors, principally the clergy and the aristocracy, sought to exact from the local population—the commoners—the tithes and similar types of payments based on entrenched feudal traditions.11 The people resisted and the Lords, the powerful, and the clergy turned to the law. But of course, it was difficult, cumbersome, and expensive to go after every little amount due from every single little laborer or parishioner. So the powerful sought to go after the whole class of commoners who owed them something under the legal customs or traditional habits of feudalism. The courts permitted it, and thus established the foundations of the class action.
This innovation originally tended to involve a single plaintiff—the lord of the manor, for instance—with numerous defendants—the workers of the manor, for instance. Class actions originally tended to operate with the defendants, not plaintiffs, as the collective. The collectivized defendants were the social underdogs, and the class action a convenience for the maintenance and enforcement of
Szyndrowski, The Class Action, From the English Bill of Peace to Federal Rule of Civil Procedure 23: Is There a Common Thread?, 8 whittier L. Rev. 935 (1987).
9. Stephen C. Yeazell, From Group Litigation to Class Action, Part I: The Industrialization of Group Litigation, 27 UCLA L. Rev. 514 (1979-80) [hereinafter Yeazell, Part 7]; Stephen C. Yeazell, From Group Litigation to Class Action Part II: Interest, Class and Representation, 27 UCLA L. rev. 1067 (1979-80) [hereinafter Yeazell, Part II].
10. See generally R.C. Van Caenegem, The Birth of the ENGLISH common Law (2d ed. 1988) (outlining historical context of English law and society during the period in which class actions...
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