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44 Loy. U. Chi. L.J. 545 (2012-2013)
Due Process and the Future of Class Actions

handle is hein.journals/luclj44 and id is 565 raw text is: Due Process and the Future of Class Actions Alexandra D. Lahav* INTRODUCTION How should due process doctrine constrain the class action device and other forms of aggregate litigation that look and feel like class actions? Since courts' conceptions of due process determine the scope of collective litigation, this short Essay considers these conceptions of due process and asks what ought they be. Its main contribution is to demonstrate how conceptions of due process from other areas of the procedural law map on to class actions, and to begin an inquiry into what is missing from these conceptions. Whatever due process doctrine generally requires, for class actions it requires this: No absent class member can be bound by a class action judgment without adequate representation.2 In money damages class actions, absent class members are entitled to notice and the right to opt out.3 Due process ideas matter even in court decisions ostensibly based only on Federal Rule of Civil Procedure 23,4 because how courts read Rule 23 appears to depend on their conceptions of how much process is * Professor, University of Connecticut School of Law. Thanks to Mathilde Cohen and Sachin Pandya for their helpful comments on previous drafts, the participants in the conference at the Loyola University Chicago Law School, and the editors of the Loyola University Chicago Law Journal. 1. These include quasi class actions, a term recently popularized by Judge Weinstein to describe aggregate settlement practices. See In re Zyprexa Prods. Liab. Litig., 424 F. Supp. 2d 488, 491-92 (E.D.N.Y. 2006). See also Charles Silver & Geoffrey P. Miller, The Quasi-Class Action Method of Managing Multi-District Litigations: Problems and a Proposal, 63 VAND. L. REV. 105, 116-17 (2010). 2. Hansberry v. Lee, 311 U.S. 32, 43 (1940) (holding that a class action cannot bind a litigant absent adequate representation); Stephenson v. Dow Chem. Co., 273 F.3d 249 (2d Cir. 2001) (permitting Agent Orange class members who had not opted out and whose injuries manifested after the Agent Orange settlement closed to sue), affd in part, vacated in part, 539 U.S. 111 (2003). 3. Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812 (1985). In injunctive class actions, the Court has not yet held that absent members are entitled to notice and a right to opt out as a due process matter, and the federal rules require neither. See id. at 812 n.3 (declining to rule on the question of due process requirements for injunctive or other class actions); Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2557 (2011) (holding that where monetary relief is not incidental to a claim for injunctive relief, an injunctive class cannot be certified under Rule 23(b)(2)). 4. FED. R. Civ. P. 23.

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