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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*
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
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).


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