Rethinking the Theory of the Class Action: The Risks and Rewards of Capitalistic Socialism in the Litigation Process

Despite all of the controversial scholarship that has been published in recent years concerning the modern class action, it is both puzzling and disappointing how little of it has sought to grasp the deep structural precepts underlying the device. All too often, the scholarly debate, not to mention the political debate, has broken down along ideological lines: the political left has reflexively favored the device and the political right has reflexively opposed it. Virtually all of even the serious scholarly work done on the subject has, for the most part, been superficial, failing to pursue, much less to grasp, the practice¿s underlying foundational purposes. The goal of this Article is to seek to understand those foundational purposes.

The Article argues that the DNA of the modern class action fundamentally differs from that of the traditional one on-one litigation process. The relationship between class attorney and class member, for example, is significantly different from the normal relationship between attorney and client.