From their origins until the present date, class actions have rested on the assumption that those within the class shared a commonality of interest. When the class is sufficiently cohesive, the named representative may appropriately litigate the interests of the entire class. American law generally holds that when a properly structured class action is resolved by a judicial judgment, the entire class is bound. This feature has made the class action a useful, if controversial, device for compacting within one suit dozens or even hundreds of individual actions. There are, however, trade-offs. For example, most individuals within the class ("unnamed" or "absent" members) have little or no control over the manner in which the class action is conducted. They thus may find themselves subject to a judgment in a suit in which their personal voices were limited or unheard. In this article, Part II documents the proposition that class suits are properly viewed as a subset of representative lawsuits. Case law demonstrates that class actions remain true to the historical and doctrinal roots of the representative suit. As such, class actions should be analyzed in much the same way as are other representative suits, with the important exception that special account must be taken of several important differences between class suits and other kinds of representative actions. The recognition that class actions constitute a special subset of representative actions is essential not only to the proper resolution of traditional, straightforward issues of personal jurisdiction but also critical to the binding effects of settlements as well as other class action issues. This part traces the ramifications of the representative model of class litigations with particular emphasis on the res judicata effects of class action judgments. Part III discusses the similarities and differences between the traditional representative suits, on the one hand, and class actions—especially modern class actions—on the other. It goes on to show how Rule 23 is crafted to bridge the gaps between traditional representative suits and class suits. From this analysis, I conclude that, if properly administered, Rule 23 and state rules modeled after it are constitutional as written. It is essential, however, that these rules be administered with proper regard for the representative model in its modified "class action" form. Part III concludes by showing why the defendant class action, often debated in the literature, should seldom cause either constitutional or practical concern. Part IV analyzes particular issues growing out of the anti-suit injunction and preclusion by judgment. Here especially, the representative model comes into tension with traditional limits on judicial power. Generally speaking, if the representative-class model is respected, one forum ("F1") is not empowered to prevent an absent class member from challenging, in the forum of her choice ("F2"), an F1 class judgment based on her contention of inadequate representation. Nor should a forum court entertaining a class action seeking primarily equitable relief ordinarily be able to preclude individual damage claims in other jurisdictions.
Graham C. Lilly,
Modeling Class Actions: The Representative Suit as an Analytic Tool,
81 Neb. L. Rev.
Available at: https://digitalcommons.unl.edu/nlr/vol81/iss3/4