The Past and Future of Defendant and Settlement Classes in Collective Litigation

For most purposes one needs to know only three things about the history of
class litigation. First, for a procedural device constantly accused of being a
dangerous innovation, group litigation has a remarkably deep history. Second, the
depth of its history should not blind us to the often unpredictable role played by
class litigation and its predecessors. Finally, although collective litigation has
frequently mediated tensions arising from the emergence of new social groups, it
has not consistently or inherently favored those groups-as often suppressing as
empowering marginal or emerging groups. The next pages illustrate each of these
points. If accepted, these arguments also illuminate the most recent cause célèbre
of group litigation-the settlement class. Hailed as a brilliant answer to litigation
problems’ caused by mass torts and denounced as a lawless betrayal of professional
ethics,’ the settlement class illustrates both the ambivalence of the historical record
and refusal of group litigation finally to ally itself with either dominant or
subservient social groups. The spectacle of the settlement class also shows how
little sense we can make of procedural rules if we fail to put them in the context of
their economic dynamics.