Constructing Class Action Reality

I. INTRODUCTION Class actions have become quite controversial.1 We regularly hear class actions criticized as a form of "extortion"2 or "legalized blackmail."3 Politicians and some commentators routinely denounce law, lawyers, and class actions all in the same breath, as if all were uniformly and universally unfair, unethical, and out of control4-all part and parcel of the same litigation "explosion."5 Of course, there isn't any litigation explosion6-but that does not stop the allegations or the anti-lawyer, anti-class action sentiment.7 This controversy regarding class actions has brought calls for reexamination and reform. As one might expect, legislative reforms-both proposed and enacted-have sought "quick fixes" for perceived problems and shortcomings in class action practice.8 More surprisingly, the calls for reexamination in the academic legal literature have proffered proposals that not only contradict the historical understanding of class actions, but indeed erode and undermine the very foundation of the theoretical justification for class actions-and thus seek not merely innovation or reform, but actually seek to construct a new class action reality. Moreover, these recent proposals seek to construct this new class action reality in a remarkably uniform manner-and one that raises significant constitutional issues. Specifically, this reconstruction of class action reality pits two inherent components of class actions against each other: one that focuses on the representative nature of the class action device, and one that focuses on the aggregate, or efficiency, component of class actions. Both aggregation and representativeness are inherent to class actions. "Aggregation"-the bringing together of multiple claims in a single lawsuit for reasons of judicial economy-is, of course, the primary underlying rationale for the class action device. A class action permits numerous claims to be adjudicated simultaneously without the need for each individual class member to institute a separate lawsuit. But class actions are more than merely large-scale aggregation devices. As shown in both the historical development of class actions and the Supreme Court's jurisprudence,9 as a general matter, a judgment involving aggregated claims binds only the named parties. To bind the entire class-both the named and unnamed class members-a representative component must be satisfied. "Representativeness" is the due process requirement that the interests of the unnamed class members be adequately represented by those participating in the lawsuit. This representative component acts as a constraint on class actions' aggregation component-in recognition of the relinquishment of their day in court, only those unnamed class members who were adequately represented will be bound by the class judgment. Part II sets out an overview of the core theoretical guideposts of this Article-the linguistic and the accompanying substantive distinctions between a "representative" versus an "aggregate" foundation and focus in constructing class action reality.10 Part III explores some of the historical underpinnings to the class action device.11 Part IV examines and analyzes the descriptive terminology used in the United States Supreme Court's class action case law.12 Finally, Part V analyzes the important distinctions between an "aggregate" and a "representative" construction of class actions, examines some of the proposals from prominent voices in the academy, and explains why the current trend toward an "aggregate" construction-despite leading to some innovative and interesting analytical approaches-would yield a new, and undesirable, class action reality.13 II. OVERVIEW: THE SIGNIFICANCE OF A "REPRESENTATIVE" VERSUS "AGGREGATE" FOCUS Class actions unquestionably have both a "representative" component and an "aggregate" component. A class action proceeds through the use of one or more named plaintiffs14 who serve as class representatives and who represent the interests of all class members, both present and absent. …