The Political Theory of the Class Action

Owen M. Fiss' Courts are not self-starting. Their proceedings must be initiated by some outside agency, and it is that agency, not the courts, who will conduct the factual investigation, devise the discovery program, select and examine witnesses, write the legal briefs, and monitor the implementation of the remedy. Who might play that role? When the remedy for violation of a legal norm consists of jail or some other form of punishment and the judicial proceeding is considered a criminal one, the power of initiation is exclusively in the hands of an officer of the state, for example, the attorney general or district attorney. Victims of crimes cannot commence criminal proceedings, and over the years the Supreme Court has been reluctant to grant individual citizens any power to review or otherwise superintend the government's decision to commence a criminal prosecution.' The situation is entirely different in the civil context. There the purpose is not to punish for a past violation, but to compensate for past injuries or to stop future violations, and the remedy sought is damages or an injunction rather than a fine or imprisonment. For such proceedings, the power of initiation has been allocated to two different agencies: public officers and private citizens. In my judgment, the class action can be understood best as a fusion of both of these agencies. Civil suits initiated by private citizens may serve their private purposes. Imagine a price-fixing agreement among stockbrokers and a suit by one of the investors for an injunction to prevent price-fixing in the future or to recover damages for the harm inflicted. The suit may vindicate or protect the individual rights of the investor. However, a public purpose also may be served by this very same suit in the sense that, if successful, it will bring the brokers' behavior into accord with antitrust law. An injunction against price-fixing in the future clearly would have that effect, but so would an award of damages to the investor. The damage award would force the stockbrokers to internalize the costs of their wrongdoing and, through the operation of ordinary principles of deterrence, discourage future violations by the defendants and other brokers. In many instances, there is no need to disentangle the private and public purposes of a citizen-initiated lawsuit. The citizen furthers the public interest by pursuing private ends. However, there is a category of cases - of increasing importance in the modern times - when the two purposes become distinct. This occurs when the harm to an individual citizen is not sufficient to give that citizen a good reason to bring a lawsuit, yet the aggregate harm to society is quite considerable. Once again consider a price-fixing agreement. This time the agreement involves stockbrokers who handle small transactions. The damage inflicted on an individual investor may be seventy dollars, but the aggregate damage inflicted on all the investors -- numbering in the millions - is sixty million dollars. In such an instance, the legal system could be relatively indifferent as to whether the seventy dollars is ever collected, but not at all indifferent to the public ramifications of the defendants' action because of the enormous social loss incurred. To some extent, such situations can be handled by suits brought by public officers. If the public interest is great and the private interest relatively trivial, then the attorney general should be able to sue the stockbrokers. While we have a strong tradition, dating from the late nineteenth century, that authorizes government-initiated civil suits as an alternative to criminal prosecution,3 we have been reluctant to make it the only available alternative for dealing with such cases. This reluctance may reflect the characteristic American distrust of government power and the desire to preserve a place for the ingenious and imaginative citizen. More concretely, the unwillingness to make the government-initiated lawsuit the only civil option in these situations may be rooted in misgivings with the official system of governance and how public officials discharge their duties. …