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

The current discussion of the settlement class assumes the device to be quite novel. That assumption of novelty is accurate only from a narrow point of view. From a slightly broader perspective, however, the settlement class resembles the defendant class actions common in medieval and early modern periods. During those periods, group litigation did not function as a device that systematically empowered plaintiffs. Only in the last few decades has the class action operated in this party-asymmetrical way. The settlement class changes that dynamic; this change, as much as anything else, explains that furor that has accompanied the settlement class. In effect defendants are turning the class action against plaintiff. From the standpoint of procedural theory, such a turn is not itself illegitimate. If one could free the settlement class from the justified concerns about lawyer-client conflict, it might serve adjudicatory efficiency and clarify procedural thought.