Sturm und Drang, 1953-1980.

AuthorMarcus, David
PositionThe History of the Modern Class Action, part 1 - Introduction into III. The Politics of Rule 23, 1967-1980 B. Efforts at Class Action Reform, p. 587-614 - F. Hodge O'Neal Corporate and Securities Law Symposium: The Future of Class Actions

Francis Fox: Back in 1963, ... if you knew what was going to happen over the next 31 years, would you not have ripped up (b)(3) entirely and told Ben Kaplan, "this is just too much trouble. We shouldn't manufacture this"?

Arthur Miller: In '63 I might have said that.... I was a young punk kid.

Exchange at a January 17, 1997, meeting of the Federal Civil Rules Advisory Committee.

In 1984, the prominent Philadelphia lawyer David Berger wanted to muscle into litigation that schools around the country had begun to recover the costs of asbestos abatement. Trying to seize control of hundreds of lawsuits, he moved under Rule 23 of the Federal Rules of Civil Procedure for the certification of a class of all public and private schools in the country. The lawyer representing the Los Angeles United School District was upset, as Berger's motion threatened to take his case--and with it huge potential fees--away from him. "You have got to be the greatest asshole that ever stepped into a court of law," this lawyer wrote in a letter to Berger, "and I would like to go to my blessed reward knowing that I personally met the greatest at something." (1)

The current era of class action litigation began on July 1, 1966, when a newly-revised Rule 23 of the Federal Rules of Civil Procedure went into effect. (2) To anyone interested in buccaneering attorneys, maverick judges, mind-boggling settlement sums, idealistic lawyering, or base legal corruption, the next forty-odd years have yielded a rich harvest. But this period may be ending. In recent years, the United States Supreme Court has paid unusually close attention to Rule 23, (3) and several of its decisions may herald a very different federal class action than what has previously prevailed. (4) More than just colorful episodes could be on the chopping block. Believing that the Court's handiwork particularly harms plaintiffs, influential observers wonder what, if anything, will be left of the mechanism that has long stirred passions more than any other procedural rule. (5)

If an era has indeed ended, then its history is in order. (6) Historical inquiry "has its own interest and charm," as Jerry Mashaw writes at the start of his monumental study of early administrative law. (7) Certainly something as important as the federal class action deserves to have its story told for this reason alone. But the history promises additional rewards, for "historical inquiry is also a species of comparative method." (8) It offers a foil for the present, to help determine what is truly new in the world of aggregate litigation, and whether ostensible developments require novel doctrine. Those concerned with the Court's recent class action adventures, for example, can use the history recounted here and in future articles to better understand what the Court has done to the federal class action, how well its current management of the device fits historical patterns, and whether anything justifies the changes it has worked to class action practice.

This normative use of history must wait, for a complete account of the modern class action's evolution requires more than an article-length treatment. My job here is to provide the first chapter, covering a period from 1953 to 1980. (9) 1953 marks an obvious starting date, as work on what became the modern Rule 23 began that year. The case for 1980 as this period's end is harder to make. It is not as if a federal judge arrived at work on January 2, 1981, read a motion for class certification over the morning's coffee, and suddenly felt the winds of change begin to blow. There is always something artificial about periodicity in history, and the task is to draw temporal boundaries with as little arbitrariness as possible. For at least two reasons, 1980 is a good candidate. As its doctrinal foundation hardened, the fledgling class action withstood a great deal of Sturm und Drang, but this upheaval had largely run its course by the end of the 1970s. A period of relative calm in class action discourse set in at that point. Also, soon after 1980, the doctrine and jurisprudence of class actions changed, reflecting a new set of intellectual concerns and the rise of the mass tort class action. (10)

This first period of the modern class action was exceptionally important. During these years, courts took the infant device and crafted a new body of doctrine for its use. Lawyers and decision-makers awoke to the promises and perils of aggregate litigation, powerful plaintiffs' side firms emerged that would set procedural agendas going forward, (11) and corporate interests began to organize to pursue a distinct legal agenda. (12) I regret that I have left some of this material on the cutting room floor for length concerns. Instead, I focus my story on a clash of ideas about how best to think about Rule 23 and the influence this conflict had on doctrinal development. Consumer advocates, civil rights practitioners, and plaintiffs' lawyers argued for what I call the "regulatory conception" of Rule 23. According to this understanding, class actions offered an important substitute for, or addition to, public administration, and courts should deploy the device aggressively to maximize regulatory efficacy. Their adversaries on the defense side responded with an "adjectival conception." (13) Like any other procedural rule, Rule 23 was distinctly subordinate to the substantive law, and whatever good it might accomplish could not justify extreme distortions to procedural normalcy.

These dueling conceptions of Rule 23 presented decision-makers, challenged by a new species of lawsuits in the 1970s, with a dilemma about how best to govern the class action. Creating a powerful cadre of private attorneys general, class actions promised important contributions to the federal regulatory state. Excessive concern that Rule 23's deployment might distort the substantive law or upend normal dispute resolution processes could hamstring its application and deny the class action a proper regulatory role. On the other hand, exotic departures from litigation norms in the name of regulatory efficacy could decouple the federal courts from traditional institutional settings and constraints.

My main claim has to do with how decision-makers, including the federal courts and Congress, responded to this governance dilemma. They chose not to resolve the normative divide between the regulatory and adjectival conceptions. Instead, they used a pragmatic balancing strategy to craft a body of doctrine that served the value of regulatory efficacy without undermining the federal judiciary's institutional integrity. This domestication of Rule 23 resulted in some doctrinal incoherence, but it succeeded in stabilizing class action law and politics by the end of the 1970s. This strategy would match how decision-makers have regulated public administration more generally, a fitting equivalence given Rule 23's importance to the American regulatory state.

This Article proceeds as follows. Part I describes the regulatory and adjectival conceptions and the dilemma of class action governance, some necessary table-setting before the history can start. Part II shows how hints of the regulatory and adjectival conceptions surfaced in the drafting history of Rule 23, conflicting with politicized accounts that make claims about authorial intentions to argue for one understanding of Rule 23 or the other. Part III turns to the politics of class actions in the 1970s. As opposing camps formed, combatants' arguments aligned around Rule 23's normative divide, suggesting its importance to doctrinal evolution. Part IV elaborates on the governance dilemma lurking behind Rule 23's politics, then shows how decision-makers used a pragmatic balancing strategy in each of Rule 23's substantive areas to stabilize this litigation by the period's end in 1980.

My account has a few limitations. First, I mostly neglect the development of class action doctrine in state courts, which also began after the new Rule 23 went in effect in 1966. (14) Until the 1980s, at the earliest, this litigation paled in regulatory and doctrinal significance to federal efforts. Moreover, my emphasis on management strategies for the federal class action governance renders state class actions less important to this narrative. Still, I acknowledge this lacuna. Second, no one of whom I am aware actually used the terms "regulatory" and "adjectival conception" during this period. Decision-makers sometimes molded class action law with sensitivity to the ideas behind these understandings of Rule 23, and sometimes they did not. But these labels usefully describe the arguments class action partisans made and the concerns that decision-makers voiced during this period as they constructed the class action's doctrinal foundation. With apologies for these and other shortcomings my story assuredly has, I begin its first chapter.

  1. CLASS ACTION...

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