December 2005 Vol. 104 No. 3 THE REVIEW

Opting Out of Liability: The Forthcoming, Near-Total Demise of the Modern Class Action

Myriam Gilles

In recent years, there have been hundreds of academic articles and scores of books written about class action litigation. The law reviews abound with doctrinal critiques, letters to Congress, moralist manifestos, and economists’ prescriptions for optimized class action rules. Reading it all, one would certainly think that abusive class action litigation is running amok in the United States.

On the doctrinal front, for example, Professor Martin Redish raises the objection that much of contemporary class action litigation is, in reality, a “lawyer-driven” hunt for bounty and that, when a court in such a case applies Rule 23 procedures to a substantive federal statute, it is effectively grafting a qui tam provision onto a law that contains no such remedy. Redish would have courts hold that Rule 23 may not be applied to lawyer-driven suits, lest it conflict with the remedial scheme of the substantive congressional enactment upon which the suit is based. Alternatively, he would settle for legislation banning the widespread scourge of lawyer-driven class actions.

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