I found particularly interesting a recent post on the Carlton Fields’ Class Action Blog that discusses a book entitled Wholesale Justice: Constitutional Democracy and the Problem of the Class Action Lawsuit by Professor Martin Redish of Northwestern University Law School.  I have not yet read the book, but based on the blog post and a book review about the book, Professor Redish’s main claim is that class actions violate principles of separation of powers because Congress’s delegation of power to the Supreme Court under the Rules Enabling Act to create procedural rules does not include the power to alter substantive rights by transforming small individual disputes into massive class actions.  The second central point of the book is that opt-out class actions under which individuals are made participants in litigation without their affirmative consent violates constitutional principles of freedom of association.  The third claim is that settlement class actions violate Article III’s case or controversy requirement.  The Carlton Fields blog post also discusses an article by Mark Hermann, Vice President and Chief Counsel of Litigation at Aon, which argues that practicing lawyers should be more familiar with scholarship in their field, and that someone should attempt to make Professor Redish’s arguments in an appropriate case. 

I think the reason why no one apparently has made Professor Redish’s arguments in court is not because no one in the practicing or in-house counsel bar is aware of them, but rather because such a fundamental transformation of class action law in one case is quite unlikely.   Lurking in these bold claims, however, are some closely-related constitutional arguments that, at least occasionally, are made by defendants and likely will continue to gain traction.  In the context of a particular case, on its facts, the certification of a class may be a violation of due process or violate the Rules Enabling Act because it is altering substantive rights or treating class members who do not affirmatively opt out in a fundamentally unfair way.  Last year’s opinion in Wal-Mart v. Dukes found a violation of the Rules Enabling Act, and potentially due process as well,  where the proposed trial plan in that case would have eviscerated Wal-Mart’s right to prove its defenses on an individual basis.  

As to whether practicing lawyers are adequately versed in scholarship in their field, I think the obligations there go both ways to increase interaction.  The advent and growth of blogs by both practicing lawyers and academics has led to far more interaction between academia and the practicing bar.  I think it keeps academics more closely in touch with what is happening in day-to-day practice and how their theories might play out in the “real world.”  This also allows practicing lawyers to keep abreast of arguments being made by academics without reading through very lengthy articles.  Since starting this blog I have had regular interaction with law professors on issues of mutual interest, and have enjoyed that.  The growing change from very lengthy law review articles (like the 100+ page ones that I had to cite check when I was on the Columbia Law Review) to more accessible, shorter pieces also makes law professors’ scholarship more accessible and useful to busy practicing lawyers and judges.  We all have to recognize the importance of brevity.  Busy judges and lawyers, as well as in-house lawyers and corporate executives, do not have the time to sift through lengthy articles.  The key points almost always can be made in something much shorter.  Whenever I serve as a moot court judge it reminds me that the time I spend reading the briefs and some of the key cases is probably equivalent if not more than the time a real judge is likely to spend in preparing for the argument.  Brevity and focus are essential in everything we do.