Some Problems of Consumer Class Actions

As a procedural device the class action has a respectably long history and, from its beginnings, has been recognized as an action founded at least as much upon convenience as upon legal theory. Interestingly enough, it was the insistence of the early equity courts on the convenient administration of justice that led to the general rule requiring all parties interested in the subject matter of a suit to be joined before the suit could go forward, and this rule presented the first barrier to the maintenance of a class suit. As Professor Chafee has pointed out, the early judges, concerned about "the possibility that the bill might be defective for nonjoinder of necessary parties," worried little, if at all, about the binding effect on absentees of a decree in a class suit if the bill was maintained.