The Politics of Access: Examining Concerted State/Private Enforcement Solutions to Class Action Bans

Procedural and substantive constraints on the ability of ordinary people to access the civil justice system have become all too commonplace. The “justice gap” owes much to cuts in funding for legal aid and court administration, heightened pleading standards, ever-rising costs of discovery, increasingly restrictive views on standing to sue, and the co-opting of small claims court by businesses seeking to collect debts, among other obstacles in the path to the courthouse. But the most consequential impediment, surely, is the enforcement of mandatory arbitration clauses with class action bans, which bar consumers and employees from bringing or being represented in any form of collective litigation. This Article, written for a colloquium dedicated to the persistent problems of representation and access, explores the politics of regaining citizens’ rights to aggregate litigation in the wake of the Supreme Court’s broad endorsement of these class-ban provisions in AT&T Mobility LLC v. Concepcion. Given the political climate in Washington, D.C., it is a safe bet that federal legislation will not overrule Concepcion anytime soon. Meanwhile, state legislation constraining class-banning arbitration clauses faces the unremitting threat of FAA preemption. But scholars and access-to-justice advocates have begun to focus on a third avenue for overcoming claims—suppressing class action bans, referred to in this Article as “concerted state/private enforcement solutions.” Concerted state/private enforcement can take several forms—whether it’s state Attorneys General engaging private counsel to pursue parens patriae damages cases under the AG’s direction, utilizing a qui tam model, or creating a regime where government enforcers obtain liability verdicts that private parties can use as conclusive proof in individual arbitrations. Each holds its own promises and poses its own challenges. But unlike head-on state legislation, the concerted state/private options are all viable as a legal matter. The question of political viability, however, is more nuanced. This Article explores the unique political calculus for states confronting the implications of the various forms of state/private concerted enforcement activity as a way to restore their citizens’ access to justice in the post-Concepcion era

Class Dismissed: Contemporary Judicial Hostility to Small-Claims Consumer Class Actions

I start from the view that small-value consumer claims are a primary reason that class actions exist, and that without class actions many - if not most - of the wrongs perpetrated upon small-claims consumers would not be capable of redress. It would then seem to follow that the class action device should be readily available in small-claims consumer cases. And yet, over the past decade, federal district courts have repeatedly declined to certify class actions on grounds that are specific to small-claims consumer cases. Foremost among those grounds is the notion that the federal class action rule carries within it an implicit requirement of “ascertainability.” More specifically, courts have held that in order to certify a class, the identity of class members must be sufficiently ascertainable to ensure the efficacy of a subsequent distribution of damages. In practice, what this shadow standard of ascertainability has come to mean is that no matter how clear the evidence of wrongdoing, plaintiffs have no redress in the typical consumer case involving small retail transactions. This article examines the ascertainability doctrine as it is developing in the courts, and shows that the traditional goals of class actions - deterrence and compensation - cannot plausibly be said to animate this new certification requirement. Indeed, the ascertainability requirement readily sacrifices both deterrence and compensation in favor of an alternative value, namely, ensuring that compensation does not flow to uninjured parties. I end with a first-round effort to understand what really may be animating the ascertainability doctrine, suggesting that the explanation lies in a conception of class actions that is based on a private law model - i.e., a conception that demands unity among the injured parties, the prosecutors of civil actions, and the beneficiaries of remedies. Future work will seek to tease out the normative underpinnings of this private law model

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

It is reasonable to expect that courts will demonstrate great solicitude for the recent innovation that I term collective action waivers - i.e., contractual provisions contained within arbitration agreements whereby consumers and others waive their rights to participate in any form of collective litigation or class arbitration. The history of mass tort class actions and the hegemonic expansion of pro-arbitration jurisprudence compel this conclusion. And, as the now-dominant economic model of contract law has moved the focus of courts from the value of consent to the value of efficiency, arbitration agreements found in all manner of shrink-wrap, scroll-text and bill-stuffer notices are increasingly upheld. As a consequence, we are rapidly approaching a world in which companies may opt out of exposure to class actions in such areas as consumer cases, civil rights, antitrust and ERISA; even the classic Rule 10b-5 securities fraud class may be an endangered species. Legal scholarship to date has tended to focus on optimizing the rules that govern all the various aspects of class action litigation. Fundamentally and understandably accepting class actions as a permanent fixture on the legal landscape, scholars draw on their various perspectival theories to offer reforms to current practice. But the potency of collective action waivers under current doctrine, and inevitable forthcoming efforts to extend their reach into new areas of law and business, should force scholars to confront a more binary question: are class actions, warts and all, a good thing or a bad thing

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

It is reasonable to expect that courts will demonstrate great solicitude for the recent innovation that I term collective action waivers - i.e., contractual provisions contained within arbitration agreements whereby consumers and others waive their rights to participate in any form of collective litigation or class arbitration. The history of mass tort class actions and the hegemonic expansion of pro-arbitration jurisprudence compel this conclusion. And, as the now-dominant economic model of contract law has moved the focus of courts from the value of consent to the value of efficiency, arbitration agreements found in all manner of shrink-wrap, scroll-text and bill-stuffer notices are increasingly upheld. As a consequence, we are rapidly approaching a world in which companies may opt out of exposure to class actions in such areas as consumer cases, civil rights, antitrust and ERISA; even the classic Rule 10b-5 securities fraud class may be an endangered species. Legal scholarship to date has tended to focus on optimizing the rules that govern all the various aspects of class action litigation. Fundamentally and understandably accepting class actions as a permanent fixture on the legal landscape, scholars draw on their various perspectival theories to offer reforms to current practice. But the potency of collective action waivers under current doctrine, and inevitable forthcoming efforts to extend their reach into new areas of law and business, should force scholars to confront a more binary question: are class actions, warts and all, a good thing or a bad thing