About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

79 Fordham L. Rev. 1939 (2010-2011)
Two Views of the Class Action

handle is hein.journals/flr79 and id is 1953 raw text is: TWO VIEWS OF THE CLASS ACTION Alexandra D. Lahav* INTRODUCTION Class actions present a series of dualities. There are two dominant views of the class action's structure and two dominant views of the class action lawyer. Some see the class action as an aggregation of individuals, a complex joinder device and nothing more. Others view the class action as transforming the class members into an entity. Similarly, there are two dominant views of the class action lawyer. Many see the class action lawyer as an entrepreneur, seeking out litigation and personally benefitting from gains accruing to class members.' Others view the class action lawyer as a public servant or a private attorney general, privately vindicating rights through lawsuits that public officials do not have the resources to pursue. The procedural law does not definitively adopt one of these views. In fact, looking to the law to answer the question of what the class is, what the class members' relationship is with counsel, and what the lawyer's role is vis d vis the class yields no definitive answers to these questions. This is because the law of class actions reflects a deep ambivalence about this procedural device that can be used to benefit class members and enforce the substantive laws, but can also be abused by lawyers seeking to extract rent from the class. At the root of this ambivalence is the relationship between the class and its lawyer. Every lawyer to some extent frames-or forms- the interests of the client. On a spectrum of lawyer control and client consciousness, the class action seems to be on one extreme end.2 In this Symposium Essay, I propose a thought experiment in which we reconceptualize the relationship between the lawyer and the class as an exercise of the lawyer's imagination. The class is a phantom client; like a ghost, it at once exists and does not exist. The question is whether the * Professor of Law, University of Connecticut. Many thanks to Judith Resnik for comments on a previous draft. 1. The less generous might call the lawyer-entrepreneur a bounty hunter. See John C. Coffee, Jr., Rescuing the Private Attorney General: Why the Model of the Lawyer As Bounty Hunter Is Not Working, 42 MD. L. REv. 215, 218 (1983). 2. We might also fruitfully consider the role of the judge, but that is beyond the scope of this essay. For a few different views of the role of the judge in complex litigation, see generally, Martha L. Minow, Judge for the Situation: Judge Jack Weinstein, Creator of Temporary Administrative Agencies, 97 COLUM. L. REV. 2010 (1997); Jonathan T. Molot, An Old Judicial Role for a New Litigation Era, 113 YALE L.J. 27 (2003); Judith Resnik, Courts: In and Out of Sight, Site and Cite, 53 VILL. L. REV. 771 (2008); Judith Resnik, Managerial Judges, 96 HARv. L. REV. 374 (1982). 1939

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most